MacElree Harvey, Ltd.

Initiative in Practice

custody

How Custody Is Determined in Pennsylvania

by

custody ID 118780032 © Publicdomainphotos | Dreamstime.com

When a marriage or relationship is dissolving, parents’ primary concern is custody of their child. ­Unfortunately, custody issues can easily become overwhelming and combative resulting in significant distress to the parents as well as the children. If parents are unable to reach an agreement regarding custody decisions for their child, a custody action may be commenced for determination by a Court. Below is an overview of the types of custody in Pennsylvania and considerations by the Court when determining an award of custody.

There are two types of custody in Pennsylvania:

  • Legal custody is the right to make major life decisions for the child, including medical, educational and religious decisions. A party may be awarded sole legal custody or shared legal custody, although the latter is most commonly awarded.
  • Physical custody is the right to assume actual physical possession and control of the child. Various types of physical custody may be granted by the Court, including shared physical custody, primary or partial physical custody, sole physical custody and supervised physical custody.

In Pennsylvania, the Court determines an award of custody based on the best interest of a child after consideration of all relevant factors. Particular consideration is given to factors that affect the safety of the child and the gender of a parent is not a consideration.

Factors considered by the Court when determining custody include:

  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  • The parental duties performed by each party on behalf of the child, including meeting the physical, emotional and social needs of the child.
  • The need for stability and continuity in the child’s education, family life, and community life.
  • The availability of extended family.
  • The child’s sibling relationships.
  • The well-reasoned preference of the child, based on the child’s maturity and judgment.
  • The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  • Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  • The proximity of the residences of the parties.
  • Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
  • The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  • The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
  • Consideration of conduct leading to the conviction of certain criminal offenses and whether the party poses a threat of harm to the child.
  • Information relating to child abuse and/or involvement with protective services.
  • The history of drug or alcohol abuse of a party or member of a party’s household.
  • The mental and physical condition of a party or member of a party’s household.

If you are considering filing for custody or have been named as a defendant in a custody action, it is important to understand the law and its application with respect to your child. To schedule a consultation, contact Ashley B. Stitzer at (610) 840-0243 or [email protected].

Custody

Ashley B. Stitzer is a family law attorney representing men and women in all aspects of family law matters, including divorce, alimony/spousal support, equitable distribution, and property division, marital agreements, child support, and child custody. From custody disputes and support issues to complex divorce and property division, Ashley takes a direct, personal approach to resolve each client’s family law concerns and prides herself on being thorough, passionate and laser-focused on her clients’ needs.

How Will Child Support Be Determined?

by

By Shannon C. Braun, Paralegal and Lance J. Nelson, Esquire-

child support_© Marzanna Syncerz ID 1057795 | Dreamstime Stock Photos

In Pennsylvania, basic child support[note]Basic child support is the base amount based on the parent’s net incomes and the guidelines. There are many other expenses that may be considered when calculating child support such as, medical insurance costs, daycare expenses, extra-curricular activities etc.[/note] is determined by using the Income Shares Model.  The first step is to determine the parties’ net incomes available for support. Then the parties’ incomes are combined for a total household income. The total household income and the number of children are applied to the Basic Child Support Schedule. The amount determined by the schedule is then divided proportionately between the parties’ based on the percentage of their respective incomes.

For example:

Mr. Smith and Ms. Jones are the parents of two (2) minor children, Mary and John. Mr. Smith’s monthly net income available for support is $5,000 and Ms. Jones’s net income is $3,000. The total household income available for support is $8,000. Based on the schedule, with a total monthly household income of $8,000, basic child support for two (2) children, is $1,795 per month. Mr. Smith’s income of $5,000 is 62.5% ($5,000/$8,000 = 62.5%) of the total household income and therefore, Mr. Smith would be responsible to pay Ms. Jones 62.5% of $1,795 or $1,122 per month in basic child support for Mary and John.

Consideration for Additional Expenses

There are many additional expenses which can be considered on top of basic child support. Some of these expenses include daycare expenses and medical insurance costs. Using the same scenario above, but assuming Mr. Smith provides medical insurance for Mary and John, with a cost of $800 per month and Ms. Jones has daycare expenses for the children in the amount of $1,200 per month. With these additional expenses, Mr. Smith would owe Ms. Jones $1,497 per month for child support. This support amount includes an upward deviation for childcare expenses that Ms. Jones incurs and a downward deviation for medical insurance which Mr. Smith provides. The calculation would be done as such, basic support (as calculated above) is $1,122 per month. Mr. Smith’s income is 62.5% and Ms. Jones’s income is 37.5% of the total combined household income and therefore, Ms. Jones is responsible for 37.5% of the $800 (or $300) and Mr. Smith is responsible for 62.5% of the $1,200 (or $675[note]This amount was calculated after taking into consideration the child tax care credit.[/note]) per month. Finally, basic support of $1,122 – $300 medical insurance + $675 daycare = $1,497 per month child support.

Deviations Based on Custodial Schedule

In addition to deviations in support for additional expenses, deviations can be given based on the parties’ custodial schedule. If the parties’ share custody and the non-custodial parent has more than 30% of the custodial time, then a deviation may be warranted.  The calculation would be done as follows: If Mr. Smith has 50/50 custody of Mary and John, then his 62.5% of his share of the total household income is reduced by the additional 20% of the time he spends with the children. Therefore, reducing his percentage to 42.5%.  As stated above, support for two children (with total incomes of $8,000) is $1,795 and 42.5% of $1,795 is $763 per month for basic support vs. the $1,122 calculated above without a shared custody deviation.

Some support calculations may seem simple but there are many factors to be considered and you should always contact a family law professional who can assist you with calculating the support you owe or are owed.

The members of the MacElree Harvey Family Law team possess the personal and professional skills necessary to help Delaware and Pennsylvania clients navigate the financial and emotional issues that often arise in Family Law cases.

If you have a Family Law matter and would like to schedule a consultation, please call (610) 436-0100.

Differences in Delaware And Pennsylvania Family Laws

by

By Patrick J. Boyer

Laws governing divorce, custody, and child support issues differ significantly from state to state. Therefore, in family law cases that involve multiple states, the laws of one state may work to the advantage of one party, and to the disadvantage of the other. This can certainly be true regarding domestic relations laws of Delaware and Pennsylvania. Below are a few areas of significant differences between Delaware and Pennsylvania law.

Spousal Support/Alimony

Both Delaware and Pennsylvania laws provide that a financially disadvantaged spouse can receive support from a financially advantaged spouse during the pendency of and following divorce.

Delaware has no formula for alimony, while the divorce and financial matters are pending (interim alimony), nor following the resolution of financial matters (permanent alimony). Rather, both interim and permanent alimony are determined by the needs of the financially disadvantaged spouse and the ability to pay of the financially advantaged spouse. If the financially disadvantaged spouse can demonstrate that she or he cannot maintain the same standard of living with their own financial resources, that individual is considered a dependent spouse and thus eligible for interim and permanent alimony. If the financially disadvantaged spouse cannot establish dependency, no alimony will be awarded, regardless of the financial resources of the other spouse. Assuming that dependency is established, the financial resources and needs of both spouses will be examined in order to determine the proper alimony awarded.

In Delaware, interim alimony can be awarded from the time that a divorce petition is filed until the final resolution of the financial matters associated with divorce. Permanent alimony is determined in the final resolution of financial matters.  Any form of alimony will terminate upon the death of either party, the recipient’s remarriage, or the recipient’s cohabitation. Additionally, if the marriage lasted less than 20 years, any alimony awarded cannot exceed 50% of the length of the marriage. For marriages of greater than 20 years, alimony is indefinite.  During the period of alimony eligibility, either party may seek a modification of alimony based upon a real and substantial change in circumstances.

In Pennsylvania, from the time the parties separate until the finalization of the divorce, a financially disadvantaged spouse can seek spousal support, or alimony pendente lite. Unlike Delaware, there is no requirement to prove a financial need, as the amount of support is calculated based upon a formula. In general, if there are minor children, the spousal support award will be 30% of the net income differential between the two parties after child support is considered. If there are no minor children, the spousal support award is 40% of the net income differential between the spouses. Alimony is awarded after divorce, and, like Delaware, is based upon the reasonable needs of the financially disadvantaged spouse and the ability to pay of the other spouse. Alimony may be modified based upon a substantial change in circumstances. Like Delaware, Pennsylvania alimony terminates upon the death of either party, the recipient’s remarriage, or the recipient’s cohabitation. The length of the alimony term in Pennsylvania varies based upon the circumstances of each case.

The differences in Delaware and Pennsylvania law can lead to vastly different outcomes for a client. By way of example, a financially disadvantaged spouse may qualify for spousal support in Pennsylvania, but not interim alimony in Delaware. Additionally, a financially superior spouse in Delaware could be faced with a much longer alimony obligation, particularly in a long term marriage.

Grounds for Divorce

Both Delaware and Pennsylvania are “no fault” states, and divorce can be granted based upon an irretrievable breakdown of the marriage. While both states have laws providing for “fault” grounds, divorces are typically not granted on this basis. However, the divorce process is very different in Delaware and Pennsylvania. In Delaware, spouses can be divorced once they have been separated for six (6) months, while in Pennsylvania, the time period is after 90 days by the consent of both parties or one or two years depending on when they separated if one spouse does not agree to the divorce. Additionally, Delaware addresses financial matters incident to divorce after the Divorce Decree is issued. In Pennsylvania, the Divorce Decree is typically issued after the financial matters have been resolved. The timing of the Divorce Decree can be important for tax filing purposes among other reasons.

Modifiability of Custody Orders

In both Delaware and Pennsylvania, custody orders that are entered based upon an agreement of the parties can be modified at any time consistent with the best interests of the child. However, the standard for modification of an order entered by a judge after a hearing is very different in these two states. In Pennsylvania, a party may seek the modification of any order, even one issued by a judge after a hearing, if it is in the best interests of the child. In Delaware, a party cannot file to modify an order issued by a judge after a hearing for two years unless they can demonstrate that the continuing enforcement of that order will jeopardize the child’s physical health or significantly impair his/her emotional development. Practically, modification of any custody order can be difficult, as courts in either state will examine whether and to what extent circumstances have changed before agreeing to a modification of a custody order.

Grandparent Custody

Grandparent custody rights are generally limited, but there are important differences between Delaware and Pennsylvania. In Delaware, grandparents can only obtain custody absent the agreement of the parents if the grandparents demonstrate that the parents are unable to care for the child. In Delaware, this is referred to as a Guardianship Order. A Guardianship Order will generally be rescinded if the parent can demonstrate that they are fit to care for the children. In Pennsylvania, grandparents can also seek custody on a variety of different bases if the parent is unable to care for the child.

The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations. If you have a family law matter that may involve the laws of Delaware and Pennsylvania, MacElree Harvey family law attorneys will help you to determine your best course of action. Patrick J. Boyer is licensed in both Delaware and Pennsylvania. He can be reached at 302-654-4454 or at [email protected].

 

LEGAL SERVICES

ABOUT US

NEWS & INSIGHTS

OFFICES

Centreville, DE

5721 Kennett Pike
Wilmington, DE 19807
302-654-4454
Learn More

Hockessin, DE

724 Yorklyn Rd #100
Hockessin, DE 19707
302-239-3700
Learn More

Kennett Square, PA

209 East State Street Road
Kennett Square, PA 19348
610-444-3180
Learn More

West Chester, PA

17 West Miner Street
West Chester, PA 19382
610-436-0100
Learn More