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What is 2-2-5-5 Shared Custody?

by bvertz on Jan 26, 2012 • Comments Closed •

There are many ways to describe a custody arrangement. The new Pennsylvania custody law, enacted in 2011, defines the terms we frequently use in describing custody:

  • “Legal custody.” The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
  • “Partial physical custody.” The right to assume physical custody of the child for less than a majority of the time.
  • “Physical custody.” The actual physical possession and control of a child.
  • “Primary physical custody.” The right to assume physical custody of the child for the majority of time.
  • “Shared legal custody.” The right of more than one individual to legal custody of the child.
  • “Shared physical custody.” The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • “Sole legal custody.” The right of one individual to exclusive legal custody of the child.
  • “Sole physical custody.” The right of one individual to exclusive physical custody of the child.
  • “Supervised physical custody.” Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.

Some parents ask me about “shared custody” of their children. What they mean varies from parent to parent. In the past, a custody arrangement was typically characterized by the children living with one parent during the workweek and spending weekends, vacations and holidays with the other parent. The law defined that arrangement as “primary physical custody” for the weekday parent, “partial custody” for the weekend parent, and usually, “shared legal custody” (the right to make major decisions concerning the child’s education, medical treatment, religious training, and other major issues). Some parents called that arrangement “shared custody” because both parents have physical custody from time to time. I call that a traditional custody arrangement. “Shared” can also refer to the right to participate in child-related decisions. Historically, the law referred to that right as “joint legal custody.” Now it is “shared legal custody.”

Over my twenty years in family law, I have witnessed a growing trend toward shared physical custody, meaning that the children spend part of every week with each parent. One form of “shared physical custody” is a 2-2-5-5 schedule. Using a calendar helps to understand this arrangement. For instance, the children might spend every Monday overnight and Tuesday overnight with Dad, every Wednesday overnight and Thursday overnight with Mom, and alternate weekends with each parent. Two days with Dad, two days with Mom, weekend with Dad, and then the beginning of the next week with Dad (5 days total); then two weekdays and the weekend with Mom (5 days total). This pattern repeats over and over throughout the year (except for holidays and vacations).

A 2-2-5-5 arrangement is favored by some parents because it creates a predictable routine for the kids. Kids will know where to be every Monday, Tuesday, Wednesday and Thursday. They only have to remember which parent’s weekend it is. This schedule also allows frequent contact with both parents. On the other hand, it does require more transitions than a “week-on, week-off” schedule.

No one can say for sure that 2-2-5-5 is better than week-on, week-off; or that shared physical custody is better than a traditional custody arrangement. That depends upon the best interests of the children and the specific circumstances of each family. But it helps to understand the terms.

PA Supreme Court Custody Decision Interprets Counseling Provision of New Law

by bvertz on Dec 8, 2011 • Comments Closed •

The Supreme Court of Pennsylvania has issued its first decision interpreting the counseling provision of the newly-enacted custody statute. In cases where a parent has been convicted of one of the crimes listed in the custody law, the court is required to provide counseling before rendering a custody order, as follows:

(c) Counseling.—In making a determination to award custody, partial custody or visitation pursuant to subsection (b), the court shall appoint a qualified professional to provide counseling to an offending parent described in subsection (b) and shall take testimony from that professional regarding the provision of such counseling prior to issuing any order of custody, partial custody or visitation. Counseling, required in accordance with this subsection, shall include a program of treatment or individual therapy designed to rehabilitate a parent which addresses, but is not limited to, issues regarding physical and sexual abuse, domestic violence, the psychology of the offender and the effects of abuse on the victim. If the court awards custody, partial custody or visitation to an offending parent described in subsection (b), the court may require subsequent periodic counseling and reports on the rehabilitation of the offending parent and the well-being of the child following an order relating to custody, partial custody or visitation. If, upon review of a subsequent report or reports, the court determines that the offending parent poses a threat of harm to the child, the court may schedule a hearing and modify the order of custody or visitation to protect the wellbeing of the child.

In DRC v. JAZ, published on November 23, 2011, the Supreme Court considered the appeal of a murderer who sought contact with his ten year old son. The trial court refused to award visitation to the homicidal parent (who was serving a life sentence) until he could provide proof of counseling as required by the new custody law. The Department of Corrections offered testimony of what types of counseling it could provide, but the trial court held that such counseling was inadequate. More importantly, the court found that it had no authority to order the Department of Corrections to provide the right type of counseling.

The Superior Court reversed the trial court’s decision, instructing the Department of Corrections to provide counseling to the inmate as required by the custody law. When the trial court implemented the Superior Court’s order on remand, the DOC petitioned to intervene in the custody action as a third party defendant.  The trial court allowed DOC to intervene but refused to stay the case. The father appealed the trial court’s decision allowing DOC to intervene. The Superior Court affirmed the trial court’s decisions. The Supreme Court then granted allocatur.

On appeal, the DOC argued that the counseling provisions of the custody law must apply only to parents who are released after incarceration, because incarcerated parents have no meaningful ability to exercise custody, partial custody or visitation of children. DOC argued that it should not have to keep mental health records that might be revealed to the inmate in the context of custody litigation as the inmates might seek reprisal for negative findings. Finally DOC argued that the courts should not impose a financial obligation upon the prison system not contemplated by the Legislature.

Applying the statutory construction rules and reviewing the legislative history, the Supreme Court held that the purpose of the counseling provision was to ensure that criminal convictions were known to and considered by the courts when determining custody of children, and to determine whether any lingering danger might exist. The Court agreed with DOC that the counseling provision did not apply to incarcerated parents in the context of a request for prison visits. Four Justices joined in two concurring opinions, with two Justices concurring and dissenting.

 

Superior Court Finds No Jurisdiction in Interstate Case (UCCJEA)

by bvertz on Apr 13, 2011 • Comments Closed • , , ,

One of the most-respected judges to sit in Family Division here in Allegheny County, Hon. Eugene B. Strassburger, Jr., recently ascended to the Superior Court of Pennsylvania. His first published opinion in a Family Division matter was released this month, demonstrating remarkable judicial restraint. In BJD v. DLC, 2011 Pa.Super. 74 (April 11, 2011), Judge Strassburger considered a custody case in which both parents and their child had moved away from Pennsylvania in 2009. The father, who won custody in Blair County in 2009, initially moved to the Mariana Islands to pursue a new relationship. He was granted primary physical custody and the right to relocate with the child. The child’s mother moved to Oklahoma, where she has resided ever since.

Father’s new romance quickly faded, and before long, he was moving to Canada for the birth of a child conceived of his short-term relationship. After the birth, he decided to return to the state of Maryland to reside with his parents, his child in tow. Meanwhile the Mother asked the Blair County court to transfer jurisdiction to Oklahoma, and Father counterclaimed for relocation to Maryland. Blair County decided to transfer the case to Oklahoma as the most “stable” jurisdiction.

In a published decision, Judge Strassburger reversed the transfer order and dismissed the case entirely, holding that Pennsylvania had no jurisdiction to act. The Superior Court dismissed the action without determining which state had jurisdiction over custody modification.

It would have been tempting to attempt to decide which state had custody jurisdiction under the UCCJEA, but Judge Strassburger declined to do so. He left the parties and their respective home forums to make those decisions.

Abbott Dissent: Opposing View on Hague Convention

by bvertz on May 20, 2010 • Comments Closed • , , , ,

Yesterday, I posted a summary of Abbott v. Abbott, 530 U.S. ___ (May 17, 2010), in which the U.S. Supreme Court held that a Chilean non-relocation order was a “right of custody” under the Hague Convention, requiring the Texas court to return a child to Chile after the mother relocated to Texas without permission. The Abbott decision was an opinion of the majority, including six of the nine Justices. Only Justice Stevens dissented, with Thomas and Breyer, JJ, joining him. This post will look at the dissenting opinion.

In his dissent, Justice Stevens described the difference between “rights of custody” and “rights of access” under the Hague Convention. If a parent’s “rights of custody” are violated, the courts must return the child to the jurisdiction that granted those custody rights. On the other hand, if a parent’s “rights of access” are violated, there is no duty to return the child. Justice Stevens argued that under Chilean law, the father in this case did not have what we would call “joint legal custody”; that is, the right to participate in major decisions concerning the child’s health, education, upbringing and religious training. The non-relocation order was merely a restriction on the mother’s custody rights, not “rights of custody” that would justify the more stringent remedy under the Hague Convention. Since the father did not have any rights or responsibilities to provide for the child’s care, the Justice argued, he should not have been able to interfere so deeply with the mother’s custody rights.

SCOTUS Rules on International Custody Case: Child Removed in Violation of Non-Relocation Order Must be Returned

by bvertz on May 19, 2010 • Comments Closed • , , , , , , , ,

The U.S. Supreme Court issued a ruling on Monday in an international custody case governed by the Hague Convention on the Civil Aspects of  International Child Abduction. In Abbott v. Abbott, 560 U.S. ___ (May 17, 2010), the mother and father of a child who was born in the United States moved to Chile. When the parents separated, a Chilean court awarded primary custody to the mother and visitation to the father. Under Chilean law, a visitation order includes the right to prohibit the mother from taking the child out of Chile without the permission of the court or the father. The mother took the child to Texas without permission, prompting the father to sue in federal court under the Hague Convention. The Texas court held that it did not have jurisdiction under the Hague Convention because the father had no “rights of custody” under the Chilean court orders. The Fifth Circuit affirmed.

On appeal, the U.S. Supreme Court reversed, holding that the father’s right to prevent the mother from taking the child out of Chile amounted to “rights of custody” under the Hague Convention. In other words, the father’s right to deny relocation, which was implicit in the Chilean court’s visitiation order, was sufficient to invoke the protections of the Hague Convention.

The Hague Convention contains a definition of “rights of custody” which includes the right to determine a child’s place of residence. An order or law that prohibits a parent from removing the child from the court’s jurisdiction imposes a duty on a parent that is a right in the other parent. This right to veto the departure of a child is a “right of custody” under the Hague Convention. This Supreme Court decision overturned decisions made in the Fifth Circuit, Second Circuit, Fourth Circuit and Ninth Circuit.

Should You Prepare for Custody Mediation?

by bvertz on May 8, 2010 • Comments Closed • , , , , , , , ,

The Jon and Kate divorce provided another example this week of what to do – and what not to do – in divorce situations. The Gosselins were ordered this week to attend mandatory co-parenting classes in Berks County.  Allegheny County and most surrounding counties in Western Pennsylvania have a similar program. In Allegheny County, it is known as the “Generations” program.

The Generations program, part of the Child Custody Department, is a mandatory two-part process for individuals involved in a custody dispute. This alternative dispute resolution program includes an educational seminar for adults, an interactive group for children ages six through fifteen, and a mediation orientation session.

The adult education seminar of the Generations program is approximately three hours in length and offers parents/caregivers the skills to reach their own resolution on custody issues. The following topics are addressed:

  • How to build a co-parenting relationship
  • How to communicate and problem-solve
  • How to help children cope effectively with their changing family
  • Identify how parent/caregiver conflict can affect the behavior of children
  • Understand that most children do best when they have the opportunity to know and love both parents
  • General overview of the mediation session

The children’s group serves children between the ages of six and fifteen years old. Children are appropriately grouped by age so that they can identify and share with peers similar experiences in their families. These groups are facilitated with activities, discussions, art, music and play.

Later in the week, after being ordered to attend parenting classes, Jon Gosselin was spotted in a mall bookstore, reviewing a copy of Kate Gosselin’s latest book, “I Just Want You to Know: Letters to My Kids on Love, Faith and Family.” Perhaps he was looking for dirt to use against Kate in the mediation.

I generally advise clients not to go to the Generations mediation with a chip on their shoulders. It is really not productive to enter mediation with a laundry list of “wrongs” perpetrated by the other parent. It does not impress the mediator. Remember that even if the other parent confesses to a murder during the mediation, the mediator cannot be called to testify. Concentrate instead on telling the mediator what custody arrangements you want, focusing on how your plan will benefit the children. If you keep your focus on the kids and why your proposal is best for them, you are much more likely to get good results.

Father’s Rights: Growing Trend in Custody?

by bvertz on Nov 23, 2009 • Comments Closed • , , , , , ,

A series of articles published last month in Working Mother magazine claims that men who seek custody of their children in contested divorces are winning just as often as women. This trend is attributed to the principle that parents who work harder to provide for the family have less time and ability to perform traditional parenting tasks. As more women devote themselves to their careers, the article suggests, they may have less time to perform parenting duties.

The thought-provoking article has been cited in the New York Times and Family Law Prof Blog.

Is Private School Better than Public, and Who Pays?

by bvertz on Aug 25, 2009 • Comments Closed • , , , , , ,

The Superior Court recently considered the case of Murphy v. McDermott (2009), in which the Court was asked to consider whether the unmarried father of a child should be required to pay parochial school tuition. Prior to the outbreak of child support litigation, Mother unilaterally enrolled the child in parochial pre-school, a decision that Father opposed but acquiesced in. When Mother enrolled the child in private kindergarten, Father was roused from complacency and refused to pay. Mother sued him for child support, including private school tuition, and won.

On appeal, the Superior Court considered the two-pronged test previously established by the Pennsylvania courts: (1) whether the child would benefit from private school; and (2) whether the expense was consistent with the standard of living established prior to separation. (Note that the parents never lived together.)  Father argued that the public school should not be presumed to be inferior, and that public school offered more programs than parochial school. The Superior Court held that it would not overrule the trial court’s finding that parochial school would benefit the child, nor its finding that Father could afford the expense. One of the Superior Court judges wrote a strong dissent, expressing his opinion that public schools should not be denigrated.  In fact, the dissenting judge would have created a presumption that public schools are adequate unless the parent seeking private or parochial school could prove a deficiency.