How Does the New Custody Law Affect You?

By Lisa A. Dougherty, Esquire

For most people, divorce is an unpleasant concept, particularly when children are involved.  But custody disputes arise in homes across the Lehigh Valley every day, leading to litigation that affects thousands of families. According to the Administrative Office of Pennsylvania Courts, in 2009, nearly 47,000 new custody cases were filed statewide, with more than 2,000 of those cases originating in Lehigh and Northampton Counties.

These cases, along with all other custody actions filed in Pennsylvania, are governed by statutes which are enacted by the state legislature. In October 2010, after years of analysis and negotiation, our existing custody law was repealed and new statutes were enacted in an effort to better serve the interests of the children affected by the law. The full impact of the law, which took effect on January 24, 2011, has yet to be seen. Even at this early stage, however, it is apparent that the law can and will significantly impact a number of issues which arise frequently in custody litigation.

The aspect of the new law which has caused the most discussion amongst attorneys statewide is the same aspect which took shape right in our backyard – relocation. Prior to enactment of the new law, Lehigh County stood alone in requiring a parent to seek the agreement of the other parent or the permission of the court before the parent would be permitted to relocate with a child. The new law extends this requirement to the entire state, requiring compliance with the relocation provisions if a parent’s proposed move will significantly impair the other parent’s ability to exercise his or her existing custodial rights.

While this constraint on relocation represents a new obligation for residents in counties such as Northampton, it’s important for all Pennsylvania residents involved in custody disputes or contemplating litigation to be aware of the requirement imposed by the new law. Even in Lehigh County, numerous instances have arisen in which a parent has moved without first seeking an attorney’s advice and giving proper notice to the other parent. For a parent seeking to relocate, knowing and abiding by the law is vital to any request. For a parent objecting to a proposed relocation, knowing the law can help to present the most effective defense and protect custodial rights.

Another small but significant change to the custody law is the inclusion of language specifically making the law gender-neutral and removing presumptions in favor of mothers. In recent years, courts have gradually shifted away from the presumption that a mother should have primary physical custody of her children solely because she is the mother. The new provision, however, represents the first time that the equal standing of parents, without regard to gender, has been explicitly recognized by statute. Mothers and fathers should both be aware of this change when pursuing custody litigation.

An additional change to the custody law which has the potential to impact a considerable number of cases is the manner in which the court is to consider criminal convictions in the context of a custody action. While the prior law also addressed criminal convictions, the new law has clarified the procedure that the court is to follow in this regard and has expanded the list of offenses which must be considered. The most notable addition to the list is the offense of driving under the influence of alcohol or a controlled substance, more commonly known as a D.U.I.  Since D.U.I. convictions are, unfortunately, not uncommon, it is imperative that a parent disclose such information to his or her attorney, along with any other convictions, whether belonging to either parent or any other party residing with the parent.

Many other changes, both small and large, have occurred with the enactment of the new custody law.  One aspect which remains unchanged, however, is that every decision by the court must serve the child’s best interest.

Lisa A. Dougherty, Esquire, is
an associate attorney in the Family Law department at Fitzpatrick
Lentz & Bubba, P.C. she can
be reached at 610-797-9000 or [email protected]

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