Children Artwork PCADV Domestic Violence Prevention

CUSTODY PROCESS

Potential custody problems and tips for solutions.

Relocation Difficult for Domestic Violence Victims & Their Children

Domestic violence victims may seek to relocate to try to keep themselves and their children safe from an abuser. However, the custody process can make it difficult to relocate. Custody begins with a custody complaint, which can be filed as part of a divorce or on its own. The Uniform Child Custody Jurisdiction and Enforcement Act (abbreviated UCCJEA and in Pennsylvania law as 23 Pa. C.S. § 5401 et seq.) says where the complaint can be filed, usually in the county and state that has been the child's home for the past six months.

In the eyes of the court, children keep their old home county and/or state until they have been in a new state or county for six months. Custody jurisdiction (whether a local court can consider a custody complaint) can be very complicated: in some instances a court can assert temporary emergency jurisdiction; in some instances a court will choose to decline jurisdiction if it was obtained by fraud or wrongdoing of the person seeking to access the court for help in the custody matter. It is extremely important to consult an attorney about custody jurisdiction questions. The Legal Resource Center on Violence Against Women may be a place to start. The Custody page has other resources and legal definitions for custody.

Order Can Add Provisions for Safe Custody Exchange

In cases involving domestic violence, victims may be afraid of violence during custody exchanges. Safety provisions such as supervised exchange or limited contact between the parties in the custody order can be added to keep the parties from coming into contact when transferring the child for visits.

Mediation Not Allowed in Domestic Violence Custody Cases 

Each county in Pennsylvania has its own manner of processing custody complaints. Some counties routinely require parenting education classes or mediation. However, mediation is not appropriate and can be dangerous in cases involving domestic violence. Pennsylvania law states that a court may not order mediation where it is disclosed that domestic violence or child abuse occurred within two years of the custody complaint (23 Pa. C.S. § 3901(c); Pa. R.C.P. 1940.3(b)).

Most counties use a custody conciliation or conference process. Generally, a custody officer will set up an informal meeting with the parents in an attempt to help the parents reach an agreement about custody. Many times the custody officer can help parents reach an agreement, which the officer will have written up and signed by a judge. Both parents get copies of the order. Orders that are specific about visitation times and locations, holiday schedules, and other arrangements are more easily enforced by the court and tend to limit conflict between the parties. 

Judge Decides When Parents Can´t Agree

If the parents cannot agree to an order at the custody conference, the conference officer will try to get them to agree to a temporary order and will then send it to court to be assigned to a judge for a trial. Other than the parents, only a judge can make a final decision on primary custody. A judge must make a decision about custody based on the child(ren)'s best interest. 

During a custody trial, there is no jury. The judge will listen to the parents and their witnesses' testimony, and make a decision. 

Factors Guiding Judges Include Domestic Violence

Pennsylvania law tells judges what to look for and what factors to consider in making a decision for custody, ultimately based on what is in the child(ren)'s best interests. Once a judge makes a decision, it will be written into a court order and both parents will get copies. 

Custody orders may be modified as the needs of the child change as long as any changes serve the best interest of the child(ren). Either parent may ask for a change in the custody order, and, generally, the whole process starts again. Parents who do not follow the custody order may be held in contempt. If a parent is found in contempt, he or she may be fined or could go to jail for up to six months. Custody can also be changed as part of a contempt order, if the other parent asks to modify the current order.

Third Parties Seeking Custody

Occasionally, third parties such as grandparents, aunts, uncles or step-parents seek custody. It is very difficult for third parties to obtain custody, but under certain conditions, they may be able to get custody or visitation. This is because the law says that parents have a superior right to have custody of their children, and other people should not be able to interfere.


PCADV Works to Increase Custody Options and Safety

  • PCADV's member programs work in every county to provide emergency shelter, legal options and other services to help domestic violence victims secure safety and justice.
  • PCADV legal department attorneys provide technical assistance to advocates and attorneys helping domestic violence victims who are dealing with custody-related legal issues.
  • PCADV offers training about custody, Protection from Abuse, and working with families affected by domestic violence.
  • PCADV provides technical support to community leaders to develop Supervised Visitation Centers in their counties. 


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