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Posts tagged "custody"

Discovery in Custody

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a custody matter, you must get permission from the court. If a request for discovery is granted, discovery would then proceed as in any other matter.

Breast feeding in Custody Disputes

Breast-feeding alone is not a reason to grant custody to the Mother over the Father in a custody dispute. In J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011), the court granted Mother primary physical custody based exclusively on the fact that the parties had poor communication and Mother continued to breast feed the child. Father was subsequently able to successfully appeal the trial court's order. Father pointed out the court's failure to consider all the factors as listed under Section 5328 of the custody statutes. Section 5328 mandates that courts consider all of the listed factors relating to the best interests of the child when entering a custody order.

Great-Grandparent Custody

Great-grandparents are able to pursue partial custody just as grandparents are. Section 5325 of the Domestic Relations Statute indicates great-grandparents may petition for partial custody/visitation where one of the following conditions is met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the great-grandparent(s) for at least 12 consecutive months and a petition is filed within six months after the child is removed from the home.

Facts about Emancipation

There is no emancipation statute in Pennsylvania and cases are determined on a case-by-case basis looking at the facts. The key factor is if the minor child has already established independence. This would include financially supporting themselves and living apart from their parent or guardian. Any judicial determination is not permanent and can be revoked if the circumstances change. Further, it is not enough for a minor child to point to an intent to live independently. Instead, they must already evidence their independent status prior to a formal determination. Marriage and enrollment in the military usually favor an emancipated determination though the same criteria should still be considered regarding independence. Overall, it is a very hard legal standard to reach.
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What is a true shared custody arrangement?

When parents divorce with children, the children need a schedule when they will spend time with each parent.  Courts seem to be moving more towards a shared custody arrangement so that both parents can actively participate in the children's lives.  A true 50/50 custody schedule is when both parents have equal overnights in a two week period.  This schedule can take many forms, from alternating weeks, to alternating every two weekdays with a long weekend, to three set nights with one parent each week and alternating one night every other week. There are many different ways to arrange it so that each parent has seven nights in a two week period.  As in any custody case, it is whatever is in the best interest of the children.  When there is a true 50/50 custody schedule, the children are able to attend school in either parent's school district since there is no primary custodian, however, the parties have to decide or the court will decide which school district they will attend.  

Child Support when Custody is Shared

When parties have an equal custodial arrangement, meaning that they share overnights on an equal basis, seven nights in a two week period with one parent and seven nights with the other, there is still the possibility of a child support order. The party who earns more money will be obligated to pay support. If, however, there is a cost for health insurance, this amount will be factored into the guideline calculation. Any cost for daycare or after school expenses will also be factored into the equation. These costs can be significant and can greatly impact who gets paid and what amount. It is a good idea to always get a rough estimate on child support before going to court over these issues.

Where do I file for Child Custody?

Jurisdiction for child custody is wherever the child has lived for the past six months. If, however, you already have a court order, the court may have retained jurisdiction of the custody order if one of the parties still lives in that jurisdiction. If no party has lived in any jurisdiction for at least six months, you must look at the state that has the closest ties to the child and see if that Court will exercise jurisdiction. The reason a court exercises jurisdiction where the child resides is because that state and county will have the best available information regarding the child, including education, living conditions, etc. all of which are relevant in determining custody of the child. Within a state, you should file in the county where the child resides. 

Changes to the Custody Order by Agreement

The purpose of a custody order is to provide both parties with a schedule on when they have their children and no longer live in the same home. This eliminates any confusion for everyone involved, including the parents, children, teachers, coaches and others who may need to know who is supposed to pick up a child and when. This is why schools require that a custody order be on file with the school. A custody order is not only a useful tool to help everyone know when they are supposed to have the children but also it guarantees time that both parents get to spend with the child or be held in contempt. With this said, however, there are times when both parents may want to deviate from this schedule by agreement. If BOTH parties are agreeable to change anything in the custody schedule, you do not have to go back to court to do so unless you want to make it a permanent, guaranteed changed. If both parties agree to make changes, it is best but not necessary to put it in writing. It is encouraged that parties work with each other as custody orders cannot contemplate every single thing that may arise such as a wedding, party, or other event that flexibility may need to be used. Parties can always give each other extra time, makeup time, agree to switch days, etc. by agreement regardless of what the custody order says as long as both parties agree. 

Consequences of Custody Contempt

23 Pa. C.S. 5323 (f) provides that any custody order should have sufficient detail to enable the parties to understand what they are obligated to do and for law enforcement authorities to be able to assist in enforcement where appropriate. Section (g) discusses the consequences for violation of an established custody order. "A party who willfully fails to comply with any custody order may be adjudged in contempt. Contempt shall be punishable by any one or more of the following: (i) imprisonment for a period not more than six months; (ii) a fine of not more than $500; (iii) probation for a period of not more than six months; (iv) an order for nonrenewal, suspension or denial of operating privilege; and/or (iv) counsel fees." 23 PA. C.S. 5323 (g).

No jury trials for custody or divorce cases

Many people who are going through a divorce or custody case are unfamiliar with the court system and what to expect unless they have had friends or family who already went through the process. In most family law cases, there are several levels of proceedings. In Pennsylvania, custody, support and divorce issues are usually heard separately and all usually involve a lower level proceeding before a trial. One thing you do not see in family law cases is a trial by a jury. If you go to court for divorce, or custody or support, and you do not resolve your case at the lower level proceedings, you will have what is called a bench trial. This is very similar to the trials you see on television, as you will have witnesses testify under oath on the stand. The same rules of evidence and procedure also apply. As a party you will also testify under oath. Your case, however, will be decided by one person, the Judge. In criminal matters and even in civil cases, you can opt for a bench trial instead of a jury, but in family law cases, you do not have this choice. You will always have a bench trial. One person will decide the outcome of your case. 

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