As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: A Petition for Visitation and/or Custody.”
CHILD CUSTODY AND VISITATION RIGHTS
- A. Petition for Visitation and/or Custody
Like nearly any other court case, all custody actions – regardless of how much custody is being sought (e.g.: primary, partial, or visitation, etc) – begin with the filing a complaint. The Pennsylvania Rules of Civil Procedure provide for a standard form for a complaint, which can be found in Pa.R.C.P. Rule 1915.15 and 1915.16.
The various county courts in the Philadelphia area offer forms for custody complaints, and they can be found at the following websites:
- Philadelphia: http://www.courts.phila.gov/pdf/forms/domestic-relations/prose-custody-complaint.pdf
- Montgomery: https://www.montcopa.org/DocumentCenter/View/294 and https://www.montcopa.org/DocumentCenter/View/302
- Delaware: http://www.co.delaware.pa.us/ojs/ojsforms/CustodyOrderObtain.pdf
- Bucks: http://www.buckscounty.org/docs/default-source/row-officers-documents/custodylegalapplication2015.pdf?sfvrsn=0
- Elements of a Complaint
As one can see from reviewing the forms mentioned above, a standard complaint for custody is to include, more or less, the following information:
- the name and address of the father;
- the name and address of the mother;
- the names, address, and dates of birth of any and all children at issue in the case;
- a list of all the addresses the children have lived at for the five years immediately preceding the filing of the complaint;
- a statement as to whether the child(ren) was/were born in or out of wedlock;
- the names of all the adults with whom the child(ren) live;
- the name and address of both the plaintiff and defendant and a description of the relationship of each to the child(ren) at issue. This is typically the mother and father but it could include anyone who has standing to bring the complaint;
- statements as to whether there is, or has been, other litigation regarding the child(ren) in other jurisdictions and whether anyone else, aside from those named in the case, could have a claim to custody;
- what sort of custody the party is seeking (e.g.: primary, sole, partial, joint, or visitation);
- a copy of a completed Criminal Record / Abuse History Verification form. The various counties offer these forms on the internet here:
- Philadelphia: http://www.courts.phila.gov/pdf/forms/domestic-relations/criminal-record-and-abuse-history-with-instructions.pdf
- Montgomery: https://www.montcopa.org/DocumentCenter/View/4949
- Delaware: http://www.co.delaware.pa.us/ojs/ojsforms/CriminalRecordAbuseHistoryVerification.pdf
- Bucks: http://www.buckscounty.org/docs/default-source/row-officers-documents/criminalrecordabusehistoryverification2014.pdf?sfvrsn=2
Unlike a civil complaint, very little additional information or advocacy needs to be included in the complaint for custody. The opportunity to advance additional information and/or advocacy is when interacting with the opposing party or attorney and/or at a hearing scheduled pursuant to the filing of the Complaint. The purpose of the custody complaint is merely to get the most basic information before the court: who the case involves, what the Plaintiff wants, and an assertion that no other court has jurisdiction.
When requesting relief in the complaint, it is important to use the proper language which best describes why the Plaintiff is seeking. 23 Pa.C.S.A. §5322 lays out the terms and their definitions. Pursuant 23 Pa.C.S.A. §5322, the relevant terms are as follows (as quoted directly from the statute):
- legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
- sole legal custody: the right of one individual to exclusive legal custody of the child.
- shared legal custody: the right of more than one individual to legal custody of the child.
- physical custody: the actual physical possession and control of a child.
- sole physical custody: the right of one individual to exclusive physical custody of the child.
- primary physical custody: the right to assume physical custody of the child for the majority of time.
- shared physical custody: the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
- partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
- supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
- In a statutory provision other than in this chapter, when the term “visitation” is often used in reference to child custody, and may be construed to mean:
(1) partial physical custody;
(2) shared physical custody; or
(3) supervised physical custody.
In the vast majority of case, the only issue in dispute is physical custody as, unless there is unusual and/or extenuating custody (e.g.: incarceration, absence, abuse), the parents of a child are both presumed to have a right to shared legal custody. As defined above, physical custody is when a parent actually has a child personally with him. By contrast, legal custody is the right of a parent to have access to, and make decisions regarding, important parenting and lifestyle issues.
It is also important to observe the fact that the specific definitions of/for the terms above do not always coincide with popular or colloquial usage. It is very common for a client, when consulting with his attorney, to use one or more of the terms above without reference to its technical, legal, definition; therefore, it is important to discern precisely what a client is seeking instead of assuming even a vague familiarity, much less a fluency, with the terms mentioned above. For example, many clients, when consulting with their attorney or filing a custody petition on a pro se basis, frequently indicate they are seeking “full custody” of their children, despite the fact that no such designation exists; similarly, they often refer to “sole custody” in the same way. In addition, it is not uncommon for someone to use the term “visitation” when he really means “partial custody.” So, it is important to discern what the client actually means sometimes despite the precise words being used.