Question: My husband and I have decided to divorce. We have 2 children. We live in Doylestown, and my husband plans to move out soon. In our conversations, my husband made it clear that I have a fight ahead of me with regard to how our marital assets will be divided. My main concern is our children. I know that divorces do not happen overnight. Can custody be decided before the divorce is final?
Answer: You should view the divorce, custody and support as three separate issues. Although they are intertwined, they are decided separately. In Pennsylvania, the determination of a custody arrangement or custody order does not depend on when a divorce is finalized. Pennsylvania family law allows parties to file custody actions on their own or as part of divorce or support actions. You can also file for custody without a divorce complaint being filed at all.
In Bucks County and most other surrounding counties after a custody complaint is filed parties will appear before a Family Master, who is an attorney who works for the County and specializes in these types of matters. The Family Master will try to resolve the matter by agreement so that a full hearing before a judge is not necessary. If the parties can come to an agreement, the Family Master will draft that agreement, have the parties sign the agreement and send it for a judge’s signature so that it can become a custody order.
However, if the parties cannot agree, then the matter proceeds to a custody evaluation, a custody hearing or a combination of both.
A custody evaluation is performed by appropriate mental health professionals approved by the Court, i.e., qualified licensed psychologists and licensed social workers, who will interview the parties, children and anyone else they deem necessary to make their recommendation for custody arrangements in a report. In Bucks County custody cases, the Court Conciliation and Evaluation Service of Bucks County (CCES) often conducts the evaluation. CCES is a Court approved program intended to streamline the evaluation process at a reduced cost to the parties. The parties still have the option of proceeding with a private evaluation, usually at a much greater cost but also much more comprehensive evaluation.
The evaluator will encourage and facilitate the parties to reach an agreement regarding all aspects of custody during the evaluation process. However, if parties cannot agree, in part or at all, the custody action will be decided before a judge. At this point the evaluator will write a report documenting their findings and issue a recommendation for what they believe the custody order should contain. Though the evaluator’s recommendation is not binding, the court generally gives both the findings and recommendation great weight in rendering their own decision.
If the parties forgo the custody evaluation and go straight to court, the judge will most likely enter an interim custody and order the parties to an evaluation so that a final custody order can be entered, unless the issue is a relatively simple one. If the scope of the issue is narrow and only involves one aspect of the custody the parties cannot agree upon, the judge may enter a final order at that first hearing.
With that said, you may not need to file a custody action and go through all of the above. I do not know whether you and your husband are on the same page about your children. If you both believe that your children need both parents in their lives and both want what is best for your children, you may be able to come to a custody agreement even though you disagree on the division of marital assets. A custody arrangement does not have to be determined by the court if parties can come to an agreement. This way, custody can be resolved rather quickly between you and your husband.