The below information focuses on custody disputes in Bucks County. Procedures vary between counties although the substantive law is the same in every county in the state.
Custody is a completely separate issue from your other Family Law matters and will be decided independently
There are two types of custody, physical and legal. Legal custody has nothing to do with who has the children at any time. Legal custody is the right and the responsibility to be involved in the decisions that affect your child’s life. Legal custody is almost always shared between the parents. Physical custody is about the schedule. “Primary physical custody” means having the children most overnights. “Shared physical custody” means having an equal number of overnights. “Partial physical custody” means having the child less than half of the overnights. Visitation means having the right to visit with the child but not to take the child anywhere.
To begin the process, you either file a Custody Complaint or a “Count” for custody as part of your Divorce Complaint. If the request for Custody is included in the Divorce Complaint, the court will do nothing to act on your request for custody until you specifically as them to by filing a Motion for Conference. It is important that we know the five year history of where the child has lived and with whom they have resided, where the child is right now and if there is any other custody actions pending anywhere.
The parties can agree to a Custody Stipulation without going to court. It is EXTREMELY important that any Custody Stipulation be drawn up by one of the attorneys. If it does not contain all of the correct language, or if it contains a term the court finds unacceptable, the court will reject the Stipulation and it will not be entered as an Order. If it is not entered as an Order, it is completely unenforceable.
If the parties do not agree to the terms of a Custody Stipulation, one side or the other must request a Custody Conference. There is no skipping the conference under any circumstances. A custody conference is an informal meeting with the parties and a court custody officer. No witnesses will be permitted in the room and the children are NEVER to be brought to a conference.
There are three basic outcomes to a custody conference: the parties reach an agreement which is signed and the matter is concluded, the parties are scheduled for a hearing in front of a judge (which is generally about a month away) or the matter is referred for an evaluation. If an evaluation is chosen, the parties must agree to either a private evaluation or to participate in the Court Conciliation and Evaluation (CCES) program.
If no resolution is reached at the conference or at the evaluation, the matter will proceed to a hearing with a judge at which witnesses are called, usually including the children. Children’s preferences are always considered but are never determinative.
Custody is always modifiable. No order is truly final.