Why it is always best when divorced parents can agree on the custody of their child, without requiring court intervention

Divorce is difficult on children. In a shared physical custody situation, kids are often forced to live between two households. Younger children are often disoriented, caused by the house-to-house transitions. Cell phones, computer chargers, text books, lunch boxes, dancing shoes, and lacrosse sticks always seem to be at the “wrong house” at the wrong time. Even if you have two sets of everything, things will inevitably be misplaced or lost in the household transitions. Keep your child out of the middle

When divorcing parties cannot agree on a custody schedule, they often turn to a custody mediator. In many Pennsylvania counties, custody mediation is mandatory prior to seeking court intervention. Many counties also require parenting classes.

Despite the best intentions of every person involved in your custody dispute, it is almost always best to try to settle child custody matters amicably, without the need for court intervention. Unfortunately, sometimes avoiding court intervention is simply not possible.

NO PERSON KNOWS YOUR CHILDREN BETTER THAN YOU KNOW THEM

Even though courts try extremely hard to make decisions “in the best interests of the child”, the truth is, compared to the parents of the child, the courts often have a very limited view of a child’s daily life and special needs. On the other hand, the parents know much more about their own child than a stranger could ever learn during a short interview with a minor, or during a court proceeding. Pennsylvania child custody law requires the courts to consider 16 factors when making a child custody determination. The weight the court gives to each factor is left to the court.

KEEPING YOUR CHILD’S BEST INTERESTS AT THE VERY TOP OF YOUR PRIORITY LIST

Kids do not usually ask for their parents to divorce each other. Kids are often innocent bystanders. One way to help protect your kids is to try to remain open minded and flexible about their custody schedule. I have seen custody disputes ignited out of one parent making a huge deal out of the other parent being 10 minutes late for a scheduled drop off, due to heavy traffic. I have also seen a mother deny the father custody of their toddler because he fell a little behind in his child support payments. Withholding custody due to late child support payments is not only impermissible under the law, it ends up hurting the child.

For some parents, it is easy to get caught up in the emotional aspect of going through a divorce. Where your kids are concerned, it is important to simply “do the next right thing” concerning their well-being and best interests. Keeping your kids out of the middle of a custody dispute with your former spouse is always in the kids best interests. Think about it. Practice it. Your kids will appreciate it.
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Social media can create marital problems

by Jonathan C. Noble, Esq.

More than one-third of divorce complaints in the United States include some form of social media as factor in divorce. According to a recent survey, the word “Facebook” appears in over one-quarter of divorce actions. It seems that the digital age has created a vehicle for marital unrest to creep into the sanctity of holy matrimony. Recently, one woman filed for divorce because she alleged that her husband of two months refused to change his Facebook relationship status from “single” to “married”. Hopefully, she lives in a “no-fault” state.

Jonathan C. Noble, Esquire
Jonathan C. Noble, Esquire

The rules of evidence are important.

The rules of evidence play a vital role in the admissibility of certain documentary evidence. E-mails, text messages, tweets, snap-chats, Linked In messages, What’s App communications, Facebook postings, Tweets on Twitter, and the like provide some of the best evidence in family law matters. However, all documents introduced at trial are governed by the various rules of evidence. Simply put, the probative value of any piece of evidence must outweigh the danger of unfair prejudice, confusion, or misleading the fact finder. All potential documents you want introduced in evidence must also be relevant and authentic. Courts are given wide latitude when making rulings on the admissibility of evidence. A skilled lawyer can navigate the rules of evidence and put your case in the best possible light.

Authenticating documents in family law cases – a potential trap for the unwary. 

Before documents can be admitted in evidence and considered by the trier of fact, they must be properly authenticated. There are several methods to authenticate documents in a legal proceeding. This is another area where skilled legal counsel can employ a pretrial strategy to greatly improve the chances that relevant evidence is admitted in evidence and properly considered.

Custody cases and Social Media – think twice, then think again before acting. Do not be your own worst enemy. 

There have been many reported custody cases where one parent does things to undermine their position. Some people do things without thinking. Some people cannot control their urge to disparage their former spouse on social media sites or in written communications. Other people cannot resist the urge to post photos of themselves doing things that undermine their credibility or that potentially damage the court’s view of their fitness for parenting their minor children.  Simply put, it is always better to refrain from doing anything that can be documented, authenticated and admitted in evidence and work against you in any legal matter. I recommend taking the mindset that you should expect that the finder of fact will be reading anything you put into the cyber world. Once your document, photograph or other electronic communication is out there, it is not always possible to retrieve. Think twice, then think again before acting on social media or before sending any electronic communication. Using common sense and focusing on the best interests of your child usually works well in custody matters. You can help yourself a great deal simply by not being your own worst enemy. Think about it.

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Bad-mouthing your ex in front of your children – don’t do it

Divorce and custody litigation can bring out the worst in many people. Emotions run high. Some people cannot resist the temptation to say something nasty or inappropriate to their kids about the other parent. Some parents even try to poison their children against the other parent. When a parent acts in a vindictive manner towards the other parent, this wreaks havoc with the child.

Jonathan C. Noble, Esq.Some parents make the same mistakes over and over, by continually bad-mouthing their former spouse. This can negatively impact your children as they grow up into young adulthood and beyond. Whenever a child hears one parent bash the other parent, the child can suffer. Continual bad-mouthing by either parent can slowly damage a child’s sense of self-esteem. Some people call continual bad-mouthing in the presence of a child “death by a thousand cuts”.

I have seen custody cases where one spouse simply cannot control their own contemptuous, bad-mouthing-of-the-ex-spouse. Remarkably, for some reason, after sharing a life with the targeted spouse and having children with the targeted spouse, the bad-mouthing spouse cannot stop speaking in derogatory terms about the other spouse in the presence of the children. In one recent case, not even a court order could subdue ongoing ad hominem attacks by a mother about her ex, in front of her young children.

Why am I writing about this issue?

First, under the Pennsylvania Child Custody Statute, bad-mouthing your ex could be considered an attempt to turn a child against the other parent. This must be taken into consideration when a court is being asked to modify custody of a minor child. Bad-mouthing conduct may be difficult to prove in court, but it is not impossible to prove. Talk to a family law attorney with experience in this area. For some reason, some parents just cannot seem to stop themselves from bad-mouthing their ex, even though they know bad-mouthing their ex is hurting their children. This may seem counter-intuitive, but it is true.

Second, a few years ago I read Divorce Poison – How to Protect Your Family from Bad-Mouthing and Brainwashing by Dr. Richard A. Warshak. I consider it a must-read for any parent involved in a high-conflict divorce. It is available on Amazon for about $10.00. Read the reviews on Amazon. (You will thank me later).

If you, or someone you know, feel you can’t control the temptation of bad-mouthing your ex in front of your children, I urge you to read the book and seek professional help, before you hurt your children. If you are the targeted parent, the book is full of useful suggestions to protect yourself and your relationship with your children.  You will be doing your children a great service by understanding how much it hurts a child when they hear a parent speak negatively about the other parent.

If you are the targeted parent, I also recommend you refuse to “fight fire with fire”. Always take the high road, despite the path your ex may choose. Do the next “right” thing. Your kids will be grateful.

Kids are defenseless against the ill-advised actions of a bad-mouthing or brainwashing parent. Think twice before saying anything that could be perceived by a child as being negative or bad-mouthing. Kids are smarter than some adults realize. The negative things you say in front of your children today, may come back to hurt you as they grow up. Think about it.

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Factors family law judges in Pennsylvania must consider in a custody case – a basic overview

by Jonathan C. Noble, Esq.   5 minute read

Think about the facts of your child custody case and how the court will analyze your case specific facts, using the sixteen child custody factors as a lens. 

A few years ago, the Pennsylvania legislature enacted a new child custody law. An important part of the new law requires family court judges in Pennsylvania to consider at least sixteen separate

Jonathan C. Noble, Esq.
Jonathan C. Noble, Esq.

factors when ordering any form of custody. Not every factor will be relevant in every custody matter. If you are in the midst of a divorce or separation in Pennsylvania, and you cannot come to a custody agreement with the other parent of the child (or children) involved, you should familiarize yourself with the 16 custody factors. Family law courts in Pennsylvania must use the 16 factors contained in the new custody law to guide their custody decisions. The polestar consideration is, was and always will be “what is in the best interests of the child”.

Here below are the sixteen Pennsylvania child custody factors. Think about how your specific situation will be viewed by a judge using the custody factors as a lens. The custody factors may also be found under 23 Pa.C.S. §5328(a) in the Pennsylvania Consolidated Statutes.

§5328. Factors to consider when awarding custody.  

(a) Factors — In ordering any form of custody, the court shall determine the best interests of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of a party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) Availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgement.

(8) The attempts of a parent to turn the child  against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing  relationship with the child adequate for the child’s emotional needs.

(10) Which party is likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

Again, with limited exception, these sixteen factors are the basic criteria by which a family law judge should make a custody determination in Pennsylvania. Only the judge can decide how much weight to give any one factor. Some factors can, and should carry more weight than other factors. Every case is different. Every judge is different. Factor sixteen (any other relevant factor) gives a court the wide range ability to look at any other relevant factors in your specific case. Conviction of certain criminal offenses will also be taken into consideration.

If the parents of the child can agree on a custody arrangement that meets the best interests of the child, without court intervention, that is usually the best scenario. Parents (and those who stand in loco parentis to the child) are normally in the best position to know what is truly in the best interests of their own child.

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Family pets and divorce in Pennsylvania – dogs are property in the eyes of the law, they are not treated as children

by Jonathan C. Noble, Esq.

Based on Pennsylvania equitable distribution law, if you come to the marriage with a pet, it will be your property if the marriage ends in divorce. 

Golden Retriever at the Museum
“A Golden Retriever at the Museum” appears courtesy of the artist Tom Mosser. Facebook Page: “A Golden Retriever at the Museum”.

In Pennsylvania, with limited exception, any property acquired during the marriage is martial property, subject to equitable distribution. This may include, but is not limited to money, real estate, retirement savings, furniture, artwork, dogs, cats, and other pets. In Pennsylvania, your family pet is treated as property, subject to equitable distribution, just like a piece of art, a piece of furniture, or a bank account. When a person owns a pet prior to getting married, the pet is normally considered pre-marital property. That means the person is entitled to keep the pet as their separate property upon separation or divorce.

In Pennsylvania, there will not be an enforceable “custody schedule” for your family pet. 

Dogs, cats and other pets are not subject to a custody schedule under Pennsylvania law.  Even though most people love their pets as if the pet was a child, the courts in PA do not treat pets as children. Any agreement regarding a custody schedule of a family pet upon divorce will not likely be enforceable in court. Of course, if the parties remain on good terms, they can informally decide whatever arrangement suits the dog and themselves.

Like everything else in a property settlement agreement, it never hurts to “think outside the box” where a family pet is concerned.

Just like a piece of furniture, an automobile, or any other piece of marital property, it is certainly possible to negotiate who will get the universally loved family dog. For example, if the other party wants an item that you may not particularly care about, perhaps a deal can be worked out whereby you would take the dog, but relinquish rights to the item coveted by the other party. “Pet visitation” is usually not a good idea in the context of a divorce, since it can prolong the ability of some people to move on with their life. It can also be another source of potential conflict.

Children, shared physical custody, and family pets. Something to think about. 

Many divorcing parties have a shared physical custody arrangement for their children. Sometimes family pets, (especially dog breeds that are historically good with children) travel back and forth with young children who spend time with both parents in two separate households.  Some label the dog a “transitional object”, which provides a sense comfort and security to children who now must spend time in two households through no fault or choice of their own. If the parties can agree to such an arrangement, and the children want to be with their family pet in both households, it is usually a positive experience in an otherwise negative situation for the children. Of course, the dog must have the right disposition to travel between households without problems.

Laws vary widely from state-to-state. Consult an attorney licensed in your jurisdiction for legal advice on the subject.  

In cases where the parties cannot agree on what happens to a pet, the courts are left to decide. Some states do recognize certain factors regarding where family pets should reside when parties separate and divorce. Courts may inquire as to who  primarily cares for the pet. This may include who usually feeds the dog,  takes it to the vet, walks the dog, etc. In rare cases, the court can order the pet sold, with the proceeds split between the divorcing couple.

The more issues resolved by the parties, without court intervention, the better. Normally, nobody knows your pet (or children) better than you do.

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