Our Attorneys Answer the Most Frequent Questions Asked by Divorcing Couples in PA
Individuals facing divorce or those involved in a custody matter, no doubt, have many questions. In addition, family law matters often cause emotional stress. It is natural to feel alone, lost, depressed or overwhelmed.
Our divorce and custody lawyers are here for our clients. In addition to providing legal support, we are emotionally supportive of our clients. We know you have a lot of questions. Can parents sue for sole custody? How long does it take for a divorce to become final? Can men collect alimony from their wives? Read through our FAQ page to find out what couples are most likely to ask when preparing to separate for good.
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Doylestown Child Custody - Will My Child Be Able to Testify at the Custody Hearing?
Will my child be able to testify at the custody hearing?
The short answer is yes, in most cases children are able to testify at a custody hearing but the long answer of whether they should testify is much more complicated. Moreover, a child can be made to testify in open court, although it is rare, but it can be necessary depending on the situation.
See below for a detailed discussion from our Doylestown, Bucks County child custody lawyer.
We are often asked whether children are allowed to testify at a custody hearing. Judges often frown upon children being forced to testify and it is ordinarily counter-productive to have children testify in Court. Having your child testify puts him/her right in the middle of the controversy between the two parents and that can be very traumatizing for the child. Judges are very sensitive and attuned to the well-being and best interests of the children. In fact, the best interests of the minor child are the predominant factor the Court uses to make a decision in a custody dispute. Forcing your child to testify may show the Judge that you are not thinking objectively about the child’s well-being first, before your own wishes to have more custodial time, unless there is a truly compelling reason for the child to testify.
That being said, one of the factors the Judge must use to weigh in a custody matter is the “well-reasoned preference of the minor child.” The rules of evidence preclude a parent from testifying about what their child’s preference is or will be. This must come directly from the child and absent some other evidence proving the preference, the child must testify to the court. One way to avoid this is to have a custody evaluation performed. A custody evaluation is conducted by a mental health professional who interviews both parents and the minor children. Once the evaluation is completed, the evaluator will write a report which is then presented to the court. The evaluator will use the same custody factors as the Court and the “well-reasoned preference of the minor child” will be one of those factors. Depending on the circumstances, the judge can accept the findings of the evaluator and enter an order based on those findings, including the child’s preference.
The term “well-reasoned” is the key to whether or not a judge will put weight behind a child’s preference. Case law suggests that in order for a child’s preference to be “well-reasoned” the child must be of sufficient age and maturity to have a “well-reasoned” preference. This usually means the child must be at least twelve or thirteen years old depending on the child’s development. The preference must also be founded upon facts that promote the well being and best-interests of the child. For instance, the judge may completely disregard the child’s preference if it is based upon having more freedom and less supervision at one household, or having less chores with one parent. The child’s preference will carry much more weight if the child’s preference is based upon one household providing a nurturing environment compared to the other, as an example.
Another issue to consider is competency, meaning the child is able to understand the questions asked, is able to communicate answers to those questions, and the child is able to testify truthfully and knows the difference between right and wrong. Before a child can testify, the court must find the child is competent to testify by asking the child questions according to that criteria.
A child may be asked to testify as a fact witness, meaning they are to testify about an event or fact that occurred in the past. By way of example, this could be an event that involved abuse, conditions at a house, something that was said by one of the parties or an altercation between the parties. Before the child can testify as a fact witness, the child must be deemed competent by the Court as explained above
Does My Child Have to Testify in Open Court?
It is up to the Judge whether or not the child must testify in open court. The judge may have the child interviewed in Chambers. At a minimum, the judge must allow both counsel to be present at such interview and able to ask questions. The he testimony must be on the record, although it may be sealed by the judge so neither parent is able to read the testimony on the transcript. Pa.R.C.P. No. 1915.11
PA Child Custody - Do I need court approval to take my children on an extended vacation?
Question: My ex and I do not have a child custody order from a Pennsylvania family court. Do I need court approval to take my children on an extended vacation this summer?
Short Answer: It depends on whether both parents can agree or not.
- Both Parents Agree: You do not need court approval if you and your ex-husband or ex-wife can agree on the summer vacation custody schedule. However, you should still get help from a child custody lawyer to write and file a consent order so that the agreement is enforceable.
- One Parent Does Not Agree: You will need court approval if your ex-husband or ex-wife does not agree on your extended summer vacation plans with your children.
See below for a detailed discussion regarding this issue.
Question: I am divorced and have shared custody of my two children with my ex-husband. When we got divorced, my ex and I agreed that we would always put our children first and do what is best for them. We don’t have a custody order, and we have been able to work out the schedule ourselves. We have also been flexible with the schedule too. When one of us wanted an extra day with our children due to vacation or any other reason, we have been able to work it out. This summer I want to take our kids for 2 weeks to travel overseas. When I discussed it with my ex at first, he was okay with it. However, when he found out my boyfriend would be traveling with us, he changed his tune and said he will think about it. Even if he does agree to it, I am a bit worried that he may later change his mind again. Should I have him sign an agreement if he agrees to the 2 week vacation? Do I have to go to court for this? If I do have to go to court, what is the likelihood that the court will grant the vacation?
Answer: It would be ideal if you can work it out with your ex-husband. Your concern that he may change his mind is valid, and it does happen. A verbal agreement or even a written agreement between you and your ex is not enforceable. The written agreement is only enforceable if it is filed with the court. Therefore, it is best to have a Pennsylvania child custody lawyer help you. The lawyer would write a consent order, which would state that you and your ex agree that you can take your children for a 2 week vacation out of the country, and file it with the court. Having a lawyer help you with a consent order does not necessarily mean you will have to go to court. The lawyer would file the consent order on your behalf.
Related: Bucks County Child Custody Case - How Summer Vacation Affect Child Custody Arrangements [Our PA child custody lawyers discuss different summer vacation child custody schedules.]
If you cannot work out an agreement with your husband, it is best to consult a lawyer as soon as possible. Summer is only a couple of months away, and you want to make sure you get this resolved as soon as possible, not a week before your planned vacation. Therefore, contact a PA child custody lawyer right away to ensure that your planned vacation is not impacted. You don’t want to be dealing with a custody battle during the summer.
If you and your ex cannot agree and you decide to go forward with a custody hearing, we cannot tell you whether the court will grant your request. What we can tell you is that the court will use the same standards and law it uses to determine child custody in general. The guiding standard for the family court is “the best interests of the child.” See Doylestown and Newtown Custody Cases - How is Custody Decided in Pennsylvania?
As you said, you and your ex have agreed to put your children first. It is important to remember that for the sake of the children, you need to communicate with each other. You don’t want to go straight to court before talking about this further. He may have concerns because your kids will be with another adult that he doesn’t know very well, i.e., your boyfriend. Perhaps by talking to your ex about your boyfriend and explaining your itinerary in detail, such as where you are staying, what you are doing, etc., he may come around.
We are happy to help you with your situation. Feel free to call the child custody lawyers at Zlock P.C. to schedule a consultation.
Bucks County Child Custody Cases
Can You Modify an Existing Custody Order?
Many divorced or separated parents have a Custody Order issued by the court. However, circumstances change, and a parent may want more time with their child than the Custody Order granted. For example, a parent who had partial custody may want more time due to a change in employment. The Custody Order was entered a couple of years ago, the parent’s job required him to travel overseas often. However, the parent now has a new job that no longer requires him to travel. Therefore, the parent would now like more time with his child.
In this next question, firm partner Kevin Zlock, a Bucks County child custody lawyer, discusses 2 ways a Custody Order may be modified.
Question: My wife and have a Custody Order, but I want more time with my kids. Can I modify the existing Custody Order?
Yes, there are 2 ways. The best way is to discuss it, agree on it, sign the stipulation and make it an order of court. Inexpensive and quick. If you can’t agree on it, then we would discuss the process, the cost and the likelihood of success.
Different judges have different biases, and we would have to address that issue and which judge you might have. As you go through the process and you are assigned the judge, we would then really hammer home that issue the way that judge wants to hear it. We would minimize any problems in your case. What that judge would want not to hear, not that they want to minimize but we would want to minimize and to maximize the issues that would help you with each particular judge.
I have been doing this a long time, 28 years. I have been in front of these judges a lot. I know what the law is. We will hopefully settle your case without litigation. But if it’s necessary, we are going to maximize your chance of winning, and I am going to tell you how to do it. We will appear in front of the judge and if it doesn't settle before the hearing, then we are going to maximize your chance at winning that hearing.
Bucks County, PA Child Custody Cases – When Do Children Have a Say?
Children of divorce often have their own opinions about who they want to live with. Do the courts take children’s wishes into consideration when determining custody? At what age can children express their wishes to the court? Kevin Zlock, a Bucks County child custody lawyer, answers these questions below.
Question: At what age is my child’s wish of who she wants to live with taken into consideration by the court? Does she have a say in who she wants to live with?
Answer: Kids shouldn't be part of the process. They shouldn't be in front of a custody evaluator. They certainly should not be in court. If they are, that’s a day they will probably never forget. We don’t want the kids in court. We don’t want them in front of an evaluator.
Oftentimes, they have to go to an evaluation. The children, as they get older, they don’t have say, they don’t get to choose. But what they want matters more the older they get, and what they want and why they want it matters as well.
Let’s say you have a 14 year who says, “I want to live with one parent because they let me stay up til midnight every night on school nights.” Well, that’s what I wanted to do when I was 14, but that might not be the right reason to have primary custody in one parent.
So what they want and how old they are matters by degrees. The older they get, the more of what they want, the judge will consider.
Of course, when they are 16 1/2, 17 years old, the judge will give a lot of consideration to it.
But at what age do they actually pick what they want? It’s 18 years old, when they are no longer children.
Related Pennsylvania Child Custody Questions
Bucks County Child Custody Cases - Does a PA Divorce Have to be Finalized Before Custody is Decided?
Many divorced parents will have to deal with custody issues. In addition, parents who are not married, but are getting separated, will also have to deal with custody issues. What many individuals who are going through a divorce and have kids do not know is that Pennsylvania divorces do not have to be finalized before custody is decided.
In this next question, firm partner Kevin Zlock, a Bucks County child custody lawyer, addresses this issue.
Question: My husband and I are getting a divorce, and we have children. Does our divorce have to be finalized before custody is decided?
Answer: That’s a good question. You don’t need to be married to have kids, obviously, and hence, there can be a custody issues with unmarried parents. So they can be handled separately as far as married parents go as well.
So you can file custody first. You can do the divorce first, or do them at the same time. They don’t cross. You do not need to attach it to the divorce complaint; you can if you wish. It’s less expensive to do it that way, sometimes, but it’s not required.
Other Related Bucks County, PA Child Custody Questions/Answers
Doylestown Child Custody Case Question
Will My Wife Get Custody of Our Children
Because She is a Stay at Home Mom?
My wife and I are headed for a divorce. For reasons I won’t get into here, she is very angry about our divorce. I want joint custody of our children, but she wants full custody. She believes that because she is the mother and was a stay at home mom, the court will give her full custody. She only wants me to be able to visit the kids a couple of times a month. Yes, she stayed home with our children and took care of them while I was at work, but I spend time with my kids as soon as I get home from work and on the weekends. I also go to my kids’ events, games, etc., as much as I can. Even though we are divorcing, I believe that our children need us both. Will she get full custody just because she was a stay at home mom?
Answer by a Doylestown Custody Lawyer
It is not true that your soon to be ex-wife will get full custody of your children just because she was a stay at home mom. Pursuant to Pennsylvania custody law, courts determine custody issues based on what is in the best interest of the child. In order to determine what is in the best interest of a child, courts will consider 16 factors provided by custody law. Some of those factors include, but are not limited to, the following:
- 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.
- The need for stability and continuity in the child’s education, family life and community life.
- Which parent is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
- Which parent 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.
Your wife believes that she is entitled to full custody because she handles more of the parental duties, which certainly is a factor. However, this factor is merely one of 16 factors Pennsylvania family courts consider when determining custody. Each of the 16 factors is given equal weight, except for the ones that might affect the safety or welfare of a child.
The fact of the matter is that because of your job, you may not be able to perform as many parental duties as your wife. However, it sounds like you are more likely to encourage and permit continuing contact between your wife and children even after the divorce. Thus, the courts will consider all of the factors to determine custody. For a list of all 16 factors, see How Custody is Decided in a Doylestown Custody Case.
Should You Agree to a Custody Schedule Without the Court in a Newtown, Bucks County Custody Case?
Question: My girlfriend and I live together in Newtown and have a son. We are going to separate because things are not working out. I am looking for a place near where we live now. We both want the best for our son and know that we both need to be in his life. We are going to make a custody schedule ourselves. We agreed that my son will live with her in our current house, and I will have him 2 days during the week and every other weekend defined as Friday night to Sunday. However, we both will make major decisions for our son, like where he will go to school. Can we agree upon this without filing any paperwork with the Bucks County family court? In legal terms, are we agreeing that we will both have shared or joint custody?
Answer: Yes, you can agree upon a custody arrangement without court intervention or filing paperwork; however, it is probably best that you file the custody agreement with the court. Once the court approves the agreement, it becomes a court order.
While you and your ex may be getting along now, you may not a year from now. When you are not getting along, communication may be difficult, and she may not comply with the agreement you both agreed upon. Because there is no custody agreement filed and approved by the court, you have no legal ground to enforce your agreement. She would not be doing anything wrong because she has as many parental rights as you do without an order. If that happens, your legal recourse would be to file a custody complaint in Bucks County to determine custody. However, if you have a custody order in place and she violates the terms of the Order, you can take the issue to the Court. Having the Order in place and her violating will be viewed as not only a violation against your parental rights but, also a violation against the Court. The violation against the Court will be subject to the contempt powers of the Court which can include up to incarceration, if severe enough.
In legal terms, the arrangement you and your girlfriend agreed upon is that she has primary physical custody, which is when a party spends the majority of the time with the child or more than half of the time, and you have partial custody because you have less than half of the time.
Because you both will decide on major decisions on behalf of your son, then you have shared legal custody. See Bucks County Custody Cases – Different Types of Custody Arrangements which discusses the different types of physical and legal custody.
Although you may not need a court to determine the custody schedule, it is best to consult with a Bucks County custody lawyer when negotiating a custody schedule with your soon to be ex.
Can Children Decide Who They Want to Live With in a Doylestown Custody Case?
Question: My wife and I are divorced. We have a son, who is now 15 years old. When we divorced, he was 9 years old. He lived primarily with his mother after our divorce, and I had him 1 night of the week and every other weekend. My ex started dating and he has been having a hard time with it. He constantly argues with her and does not like her current boyfriend. On nights when he is supposed to be with her, he has ridden his bike to my house. I would then call my ex and take him home or let him stay with me if my ex agreed. He has been asking to live with me and never wants to go home when his mother comes to get him. How do we change the current custody arrangement? Can my son decide where he wants to live?
Answer: As much as your son wants to live with you, he cannot decide which parent he will live with. However, this does not mean his preference is ignored when courts in Bucks County determine custody. One of the factors a Judge must consider when entering a Custody Order is the “well-reasoned preference of the minor child.” In general, the weight of the child’s preference depends on his age, maturity and intelligence. For example, a 15 year old’s preference will likely be given more weight than an 8 year old’s preference.
Courts also consider other factors as to why the child wants to live with one parent. For instance, does the child want to live with the father because the child had one fight with the mom? Or is there a well-reasoned, sound and valid basis for why the child wants to live with the father?
Ultimately, the court will determine custody in the best interests of the child and consider 16 factors. A discussion of these 16 factors can be found in our previous blog, Doylestown and Newtown Custody Cases – How is Custody Decided?
Changing a Custody Arrangement
If you want to change your current custody arrangement, we would need to know if there is a custody order. If so, you would need to file a petition to modify custody. If there is no custody order in place, i.e., the current arrangement was agreed upon privately between you and your ex, then you would need to file a custody complaint to have the Court determine the custody schedule if you can’t agree on a new arrangement.
What to Do If Your Ex Does Not Comply with the Custody Arrangement You Agreed Upon? By a Doylestown Custody Lawyer
Question: My ex and I have a beautiful son. After we separated, we both decided to stay in Doylestown because that’s where both of our families are and where my son’s school is located. We were able to agree on a custody arrangement without going to court. We both decided that 50/50 shared custody was best for our son. Everything has been okay thus far, but recently, there have been a few incidents that worry me. On a few days when I was supposed to pick my son up from school, my ex would text me that he already got our son from school and that he would bring him home the next day. We have discussed this issue and he said that he wouldn’t do it again without telling me first. However, he just did it again last week. How can I stop him from doing that? Isn’t that illegal? Should I call the police if he does it again? What can I do to stop that?
Answer: Unfortunately, your ex can pick your son up without telling you because there is no court order for custody in place. Without a custody order, your ex is equally entitled to custody of your son as you are. Though it may be irresponsible, it is not illegal for him to pick up your son even though it was your day under your agreement with him. Even if you called the police, it would not make a difference. The police would not get involved because there is no custody order and your ex did not do anything illegal.
If this is a pattern that affects your time with your son, you really should talk to a Doylestown custody lawyer about what you need to do, such as filing a custody complaint. A Doylestown custody lawyer may also discuss an emergency custody complaint, which allows the judge to address the issue of pick-up or any other issues while you and your ex are going through the custody case before a custody order is determined.
If your ex deviates from the schedule after the custody order is determined, i.e., picks up your son on your days, he would be violating the custody order. There may be serious consequences for your ex, i.e., you may file a motion for contempt with the court, and the court may modify the custody order.
Are There Different Types of Holiday Custody Schedules? Answer by Newtown Custody Lawyers
Question: What kind of holiday custody schedules are there? My wife and I recently decided to divorce, and the thought of not being with my children during some of the holidays is very upsetting to me. I want to make sure that the schedule is fair.
Answer: I have seen all kinds of holiday custody schedules. There is no one holiday custody schedule that works for every divorced or separated family, but you should seek counsel from a custody attorney to make sure you can reach a holiday custodial agreement that is best for both of you.
If you and your soon to be ex-wife are divorcing on good terms, you may be able to agree on a holiday custody schedule without a court order. Even if you are on good terms that relationship may break down in the future so you should always plan ahead, hoping for the best but expecting the worst. I always recommend the holiday custody schedule should be a part of the custody order. Below are 2 different types of holiday custody schedules.
Divorced or separated couples may decide to alternate holidays. This is the most common division of holidays when both parties celebrate the same holidays. For instance, in year 1, the mom may have custody of the child during Labor Day weekend, while the dad has custody of the child during Memorial Day weekend. In year 2 of such an alternating arrangement, the mom will have custody of the child during Memorial Day weekend, and the father will have custody of the child Labor Day weekend.
Parents do not have to agree to alternate every holiday during the year. In other words, they can decide to only alternate Labor Day and Memorial Day, and not alternate Thanksgiving and Christmas. They may decide to divide the holiday, which is discussed in the next section.
Dividing the Holidays
Parents can divide each holiday, sometimes in conjunction with the alternating schedule. Christmas, for instance, can be divided so that each parent gets time with their children during the holiday. For example, a parent can have custody of the child beginning on December 24th at 8:00 am and ending on December 25th at 2:00 pm. The other parent then has custody of the child beginning on December 25th at 2:00 pm until December 26th at 8:00 pm.
The parents can further agree that the above arrangement will alternate each year. Therefore, one year the mom has custody the first half of Christmas, and the dad has custody the second half of Christmas. Then the next year the dad has custody the first half of Christmas, and the mom has custody the second half of Christmas.
If the parties do not celebrate the same religious holidays it makes it somewhat easier but the national holidays such as July 4th and Memorial Day would still have to be addressed.
Another consideration is if one of the parent’s extended family has an annual get together for one of the holidays. In cases like these, the parents often “trade” for the other like holiday period (i.e. Memorial Day for July 4th), particularly if it requires travel to a distant location.
Other than the above examples, there are many other types of custody schedules in Bucks County custody disputes. In addition, there are other factors we need to consider when planning custody schedules, such as the specific terms of the schedule. See Planning a Newtown and Doylestown, Bucks County Holiday Custody Schedule.
It is difficult to face custodial issues during the holidays, but you are not alone. We, as Newtown custody lawyers, can help you devise a holiday custody schedule that is fair for all parties and in the best interest of your children.