In Pennsylvania, the paramount concern in a child custody proceeding is the best interest of the child. In determining the best interest of the child, courts engage in a comprehensive analysis of the factors outlined in 23 Pa.C.S.A. § 5328. Pennsylvania Health and Safety Statute §10231.2013 states that the use of medical marijuana in accordance with state laws is not a consideration by itself in a custody case. The custody laws have not been amended to address the issue or make similar limitations regarding the use of medical marijuana by a parent.
On December 18, 2019, however, the Superior Court of Pennsylvania issued an opinion affirming an April 5, 2019 Schuylkill County Court of Common Pleas decision limiting self-represented Father’s contact with son, age 10, to periods of supervised physical custody. The case involves a child born in May of 2009 to Mother and Father, both who have struggled with substance abuse. The court noted that Father’s recreational use of marijuana has been a recurring issue throughout the custody litigation. Father obtained a medical marijuana license when the parties were living in Georgia. At the time of the hearing, the child’s maternal grandparents had primary physical custody of the child. The trial court had awarded maternal grandparents primary physical custody of the child adding a provision that conditionally extinguished Father’s supervised custodial time “upon Father’s willingness to demonstrate sobriety and continued abstinence.”
Father argued that in light of his license to use medical marijuana as a mechanism to manage his wrist pain, the trial court should not weigh the fact of his medical use against him. The trial court rejected Father’s argument and reinstated the prior custody arrangement and the hair-follicle-testing condition. The trial court reasoned that it is unknown to the Court what effect, if any, Father’s alleged medical condition and use of marijuana, whether prescribed or used recreationally, may have on his ability to care for a child. Father appealed, and the Pennsylvania Superior Court affirmed the trial court’s decision.
The Superior Court noted that the Medical Marijuana Act prohibits the fact-finder from penalizing a parent simply for using medical marijuana. However, in the instant case, the trial court concluded after a consideration of all of the best-interest factors and the evidence presented, that it was not in the child’s best interests to expand Father’s supervised partial custody to unsupervised overnight custody without requiring Father to continue to submit to the previously-ordered drug screening regimen. The Medical Marijuana Act does not preclude the court from making relevant findings concerning effective marijuana use, medical or recreational, on parent’s ability to care for a child. The Superior Court noted that the fact finder should consider not only the parent’s history of drug and alcohol use, but also the parent’s mental health and physical condition that might require the parent to rely on prescribed medication to subdue that pain. The Court concluded that a parent’s history of drug and alcohol abuse, including a parent’s legal use of any substance, should be considered in determining the child’s best interest.
The holiday season can be a stressful time of the year, especially for children whose parents have recently separated or have a tense custody arrangement. I often remind my clients to keep in mind that the children have not asked to be put in this position, and parents should do all they can to ensure a happy and stress-free holiday for their children. After all, the children should be the focus in the holiday season. Here are some tips to help reduce tensions for your children over the holiday season .
1. Make it clear to your children that you are genuinely happy for them to spend time with the other parent.
2. Help them make cards and gifts or take them out to buy something for the other parent. It doesn’t have to be extravagant, but this small gesture will go a long way in bringing happiness to your children, and hopefully foster more civility with their other parent. The children will be excited that they have a gift to give, and hopefully the other parent will reciprocate in the future.
3. If your children are having fun at the other parent’s house, spending time with family they haven’t seen in some time, and want extra time with that family, consider allowing them to spend a little extra time before you pick them up, especially if your plans are flexible.
4. Don’t cancel Christmas or Hanukkah. Some parents decide that because they are not going to have their children at a specific time on the holiday, they are not going to celebrate this year. The only ones hurt with this approach are your children, who – after all - did not ask to be subject to a custody order. Make it clear to your children that you were excited to celebrate with them, and that you will be celebrating when they are back at your house. That will also give them peace of mind to enjoy the holiday more when they are with the other parent free of guilt and worry that you are sitting home alone and sad since they are not there with you.
5. Make sure you look at the custody order in advance. If you have any questions make sure to have those questions answered by your attorney or resolved in a discussion with the other parent well in advance to avoid disputes on the eve of the holiday .
If your children see that you are happy to celebrate the holiday, no matter what the schedule is, that will allow them to more fully enjoy the holiday as well.
Wish you and your family a very happy holiday season.
On July 4, 2018, recent changes to the Pennsylvania custody law will go into effect. These laws take into account changes in the family structure and the expansion of classes of individuals who may qualify to file for physical or legal custody of minor children.
The new class of individuals (third parties) who will have standing to file for custody must meet all of the following criteria as set forth in 23 Pa. C.S. 5324: 1. The individual has assumed or is willing to assume responsibility for the child; 2. The individual has a sustained, substantial and sincere interest in the welfare of the child; and, 3. Neither parent has any form of care and control of the child.
In order to have standing, the individual must prove all three criteria by clear and convincing evidence, which is a high burden of proof. Presumably, the burden is high to ensure that the child is protected and does not end up in the custody of someone unsuitable. This opens up the possibility for neighbors, family friends, aunts and uncles or even sports coaches being awarded custody of children. The law also has a further limitation in that, if there is a dependency proceeding, meaning that there is a pending dependency petition alleging that the child(ren) is without proper parental care and should be supervised by the court, then the above criteria will not apply.
It should be noted that grandparents could have standing under two sections of the Custody Code. While grandparents and great-grandparents may have standing under 23 Pa. C.S. Section 5324, above, they may also have standing to seek partial physical custody or supervised physical custody of their grandchildren or great-grandchildren under 23 Pa. C.S. 5329. There have been changes to this section that will be effective July 4, 2018 as well. Case law previously struck the sections that allowed for grandparents’ standing if the parents of the child(ren) were separated for at least six months or were getting divorced. This is because it is unconstitutional for intact families and families that are not intact to be treated differently. The new revisions reflect that case law, and also strike those sections, but also added an additional section to allow for grandparent standing: 1. Where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child: A. Have commenced a proceeding for custody; and, B. Do not agree as to whether the grandparents or great-grandparents should have custody under this section.
Essentially this change allows a grandparent or great-grandparent who has an existing relationship with the grandchildren or great-grandchildren to be added as a party to a custody proceeding when the parents of the child cannot agree if the grandparent or great-grandparent should have any custody.
The final change to 23 Pa. C.S. 5329 changes the word parent to party in the section for consideration of criminal conviction. The court must consider criminal convictions and make sure that there is no threat to the child(ren) before entering a custody order. This consideration relates to entering an order of custody to a party (not just a parent) who does have certain criminal convictions.
The timing of these changes to the custody law coincides with the rise of the opioid epidemic both nationwide and in the local area specifically. Sadly, there has been a rise in the past few years of parents battling drug addiction and unable to care for their children, to the extent that Pennsylvania legislators have felt compelled to address the impact of this crisis on minor children. These changes to the custody law increase the potential third parties who could seek to assume custody of the children in these situations. The changes in the law reflect the reality that some of these third parties may already be caring for the child, but did not have standing to file for physical and/or legal custody previously. As of July 4, 2018, they will be able to do so.
Although the weather is just starting to change to cooler temperatures, the holiday season is fast approaching. Holiday displays are up, holiday music is already playing and even the pre-Black Friday sales have started. It seems that with the warmer temperatures well into the fall, the holidays have snuck up on us all. While it is easy to get wrapped up in the spirit of the season, if you have minor children and a custody agreement or order, it is time to take a look at your custody documents and give some thought to what lies ahead in the next several weeks.
Before you make plans with your children, it is important to see what the holiday schedule is for this year. Which days of the holidays are your children with you, what times are they with you, and who is responsible for transporting the children? It is important that you know the answers to all of these questions. Take out your custody agreement or order now and look through the schedule for Thanksgiving through New Year’s. If you have questions, now is the time to ask your attorney, not on Thanksgiving morning. We all know that a lot of advance planning occurs for the holidays, and family gatherings are scheduled. If it is important to you that your children celebrate with you and your extended family, you want to be sure to make your plans around when you have physical custody of the children. Knowing the details of the holiday schedule now will enable you to make plans based upon the custody schedule and keep everyone happy, which should result in a more peaceful holiday for you.
People are often surprised to find out from their domestic relations attorneys that there are two different types of custody that have to be addressed: physical custody and legal custody.
Physical custody is simply which parent the children are with at a given time. This is generally addressed in a custody agreement or custody order based upon three time periods. First, who has the children on a regular weekly basis. This is for both days and nights. Second, how much vacation time does each of the parents have with the children. Third, who has the children on holidays. The parents can decide which holidays are important for them to address, and usually not every holiday is considered. Primary physical custody occurs when one parent has the child or children more than half of the overnights each year. The other parent is then considered the partial physical custodian. Even if there is a primary and partial physical custodian, this custodial arrangement is still considered a form of shared physical custody. Equal physical custody occurs when the parents each have half of the overnights in a calendar year.
Legal custody relates to legal decisions that impact the children. The major areas of legal custody are education, religion and healthcare decisions. In the vast majority of custody cases, the parents will share legal custody and therefore make these decisions jointly. Parents with younger children will have to make more legal custody decisions as compared to those with older children, for whom many of these determinations have already been made.
Custody schedules can be structured many different ways based upon what is in the best interest of the children, and what works for the parents. Parents are highly encouraged by the court to work out custody schedules. If they are not able to, the court will make a determination and issue a custody order.
Custody is often the most emotional aspect of a divorce or separation. We strongly recommend that parents facing custody issues contact an attorney to be sure they understand the process, and their rights under the law.