Pennsylvania Custody Laws and Grandparents' Visitation & Custody Rights

By Lisa Marie Vari , Esquire

Jurisdiction to Determine Pennsylvania Custody Cases

Before any court can make a custody determination, the court must have jurisdiction to enter the custody order. Jurisdiction is another way of saying that the court has the authority to enter an order on a particular case. Pennsylvania has recently adopted the Uniform Child Custody Jurisdiction & Enforcement Act, the UCCJEA, that sets forth the rules regarding which court has jurisdiction to enter a custody order. The UCCJEA provides that the court in the county and state where the minor child has lived for the six month period of time preceding a custody action is generally the court that has jurisdiction to determine the appropriate custody order. The UCCJEA also provides that if there has been a prior order regarding custody, the court that originally entered the order will be the court to modify the prior order unless that court decides that another county court would be the more appropriate forum.

Pennsylvania Laws regarding Physical Custody

Physical custody is the actual physical possession and control of a minor child. Pennsylvania statutes further define physical custody based upon the amount of overnights each party spends with the minor child. A party may have sole physical custody, primary physical custody, partial physical custody, shared physical custody, or visitation. Visitation is the right to spend time with a minor child, but not the right to remove the child from the custodial parent's control. Partial custody is the right to take possession of a minor child away from the custodial parent and may include the right to have overnight custody with the child. Shared physical custody (sometimes referred to as joint physical custody) is the term used to designate frequent and continuing contact between the child and his or her parents and is the term generally used when both parents have almost equal overnight periods of custody. Primary custody is the right of one parent to have the majority of custodial time with a minor child. Sole physical custody is rarely awarded. Sole custody is the award of custody rights to one parent with no custody rights to the other parent.

Pennsylvania Laws regarding Legal Custody

Legal custody is the right to make important decisions that impact the minor child including decisions regarding education, religion, and medical care. If the parents are able to cooperate in any minimal fashion, legal custody is often shared between the parents. Under a shared legal custody arrangement, the parent who has physical custody on a given day makes routine day-to-day decisions impacting a minor child and the parties share the responsibility for making major decisions.

How is custody decided in Pennsylvania courts?

Most of the time, parents are able to come to an agreement on the best type of custody arrangement for them and the children. After all, isn't it better for the parents to decide what is the best custody arrangement for their children rather than a judge who doesn't know the parents or children? Even when the parents are angry at each other, hopefully they can step back from their anger and realize that both parents play an important role in their children's lives.

However, in some cases, the parents are not able to speak to each other without fighting let alone come to an agreement regarding custody. If the parents are not able to agree on a custodial arrangement, court action may be necessary. The formal legal process begins with the filing of a custody complaint. Generally, the complaint is filed in the state and county where the child has lived for the past six months.

After filing the custody complaint and prior to any scheduled court dates, some counties require that the parents and children over a certain age attend a seminar that explains the court process, the emotional impact upon the children of the parents' separation and the legal process. In Allegheny County, the parties in a custody action must also attend a mediation session with a court appointed mediator. If the custody problems are not resolved by mediation or if no mediation program exists, usually the initial court hearing involves a conference with a court-appointed custody master or hearing officer. The custody master or hearing officer is not an elected judge; he or she is a court employee who is assigned to try to assist parties in resolving custody disputes.

If an agreement cannot be made at the conference before the custody master or hearing officer, home studies and/or psychological evaluations of the parents and children may be ordered. Once the psychological evaluations are completed and a report is issued, a hearing is then conducted and the court will determine the custodial arrangement that is in the best interests and welfare of the children. The best interests analysis generally includes consideration of any prior custody arrangements including the amount of time each parent has spent with the child in the past; the involvement of each parent in the child's school, religious upbringing and medical care; whether there are other siblings or half-siblings in either parent's residence; the child's preference if the child can articulate a justifiable reason for the preference; the school district where each party resides and the distance between the parties' residences; whether either parent or the children suffer from any psychological or physical conditions; whether either parent abuses prescription or illegal drugs or alcohol; whether the parents are able to communicate and cooperate with each other regarding the children; and whether either parent has attempted to undermine the other parent's custody rights.

Custody relocation cases in Pennsylvania

In this fast-paced world, parents often seek to move out of the county or state where they have previously resided with a minor child. It is oftentimes advisable to obtain written permission from the other parent or an order of court prior to relocating to another area, as the child may be required to be brought back to his or her former location if prior approval was not obtained. In Pennsylvania, a court hearing on whether the parent is permitted to move the minor children is called a "relocation" hearing or a "Gruber hearing", after the seminal case dealing with this issue. Whether or not a parent is permitted to relocate with the minor child or minor children depends on a number of factors including the extent of the relationship between the children and each parent prior to the request to relocate, the reasons behind the move, the reasons why the non-relocating parent wishes to prevent the move, whether the move would improve the quality of life for the children, and whether a realistic schedule for the other parent could be formulated if the relocation is granted.

Grandparents' Visitation and Custody Rights in Pennsylvania

Currently, Pennsylvania recognizes the rights of grandparents to seek visitation, partial physical custody, or primary physical custody of their minor grandchild or grandchildren. The grandparents must prove that the requested custody would be in the best interests of the minor grandchild or grandkids and would not interfere with the relationship between the parent and the minor child.

One of the most recent cases involving grandparents' rights evolved through the Armstrong County Court of Common Pleas. In the case of K.B., II, K.B. and B.B. v. C.B.F., the Armstrong County trial court awarded primary physical custody of a minor child to his paternal grandparents even though the court found the child's mother to be a fit parent. Attorney Vari was retained to represent the mother in her appeal to the Pennsylvania Superior Court. In the case argued before the Pennsylvania Superior Court, Attorney Vari argued that only if a parent is declared to be unfit should grandparents have the right to seek primary physical custody of their minor grandchildren. While Attorney Vari was successful in having mother's primary custody rights restored, the Superior Court of Pennsylvania held based upon Pennsylvania Supreme Court precedent that grandparents have the right to sue parents for primary physical custody of their grandchildren even if the parents are deemed to be fit parents. On January 2, 2004, the Pennsylvania Supreme Court agreed to review the Superior Court's ruling on the K.B., II, K.B. and B.B. v. C.B.F. case. The Pennsylvania Supreme Court has not yet entered its decision on the case.

After the United States Supreme Court case of Troxel v. Granville was decided, some parents and their attorneys have argued that it is unconstitutional for a state court to award even partial custody or visitation to grandparents if the parent disagrees with the grandparents' request for partial custody or visitation. The Pennsylvania Supreme Court has not yet had the opportunity to review whether Pennsylvania's grandparent visitation statutes are constitutional in light of the Troxel case; however, the Pennsylvania Superior Court has held that the visitation statutes are constitutional.

Modification and Enforcement of Pennsylvania Custody Orders

Once a custody order has been entered, the courts expect that both parents will comply with the terms of the custody order. If a parent does not comply with the order, a contempt action can be initiated against them. If a parent is found to be in contempt for failing to comply with the custody order, the other parent can be awarded make-up time for the missed visits as well as other sanctions which could include payment of the other parent's attorney fees. The UCCJEA not only provides which court has jurisdiction to hear custody cases, the UCCJEA also sets forth methods to enforce custody orders in other counties, states and countries. Because of the potential for having sanctions imposed for violating a custody order, it is best to request a modification of the order if it is believed that a change in the order is in the children's best interests. A request to modify a custody order must be made to the court who entered the most recent custody order even if the children no longer reside in that county. If the children have moved, the UCCJEA provides that the court that entered the most recent custody order must decide whether it will transfer jurisdiction to the county court where the children are currently residing.

Disclaimer

The statements in this section are based on Pennsylvania law and have been issued to inform and not advise. The statements are general in nature and individual facts in a given case may alter their application or involve other laws not referred to here.

ABOUT THE AUTHOR
Lisa Marie Vari, has focused her legal efforts in the family law field for over ten years. Attorney Vari handles the most complicated aspects of the firm's divorce, equitable distribution, support and child custody matters. Ms. Vari is a member of the Allegheny County Bar Association and the Pennsylvania Bar Association, including the family law sections of both organizations, and the Allegheny County Matrimonial Inns of Court.