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5 Questions Answered
- Q. Dad had dui class during his scheduled time with son. Am I obligated to let him make up lost time?
- A: Legally speaking, are absolutely under no obligation to provide “make-up time” to a parent who has to miss part of their custodial time due to a prior obligation. If you have a custody order issued by the Court, you are only required to relinquish custody of your child for the time specified therein. In fact, you are not even required to provide child care for any time during the other parent’s scheduled custody time that they are unable to physically be with your child, regardless of the reason. Often times, courts will order a “right of first refusal”, which means that if your child’s father is not going to be present during a large amount of his custodial time (typically 3 hours or more at once), rather than immediately put the child in a third parties’ care, you would have first dibs at watching and caring for your child during this time. If your child’s father’s custody or visitation is only for an 8 hour period of time with no overnight, he should make every effort to not schedule anything else during this time. DUI classes typically give multiple options for scheduling, so most likely he scheduled the class to be during his custody time. This is not your problem. However, with all of that said, you may want to consider providing this makeup custodial time. for your child’s benefit. If your child’s Custody time is already extremely limited with his or her father, you should weigh the pros and cons of allowing this hour and a half to be made up at another time, taking into consideration the inconvenience, if any, that it would place on you. After all, the ultimate standard for child custody is what is “in the best interest of the Child”, and not “what is fair to the parents”!
- Q. Just found out my father's daughter left the state without notifying anyone. What can I do about support and visitation
- A: From your question, it is not clear whether you currently live in Pennsylvania, or if PA is the state in which your child's father's new residence is located. Regardless, when parties live in different states, jurisdiction can be a confusing and complicated issue to untangle. Due to the complexity and potential difficulty faced in uniformly enforcing child support orders across the country, there are procedures and guidelines governed by the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all 50 states and the District of Columbia. Generally speaking, if you do not have a support order, you may file for one in Pennsylvania if this is where your child's father used to reside with your child, and either you or your he continue to reside in the state. Pennsylvania will retain jurisdiction as long as he has "sufficient contacts" with the state. You can find out more detailed information with respect to jurisdiction over a non-resident in child support under 23 Pa.C.S. § 7201. This link will take you to the statue. (https://law.justia.com/codes/pennsylvania/2010/title-23/chapter-72/7201/) If your child's father meets this jurisdictional criteria, you may file a Complaint for Child Support, or Petition to Modify an existing order in the state of Pennsylvania. However, although Pennsylvania may have absolute jurisdiction over entering and modifying the child support order, enforcing the order may be a different story. You will need to register this existing order in your child's father's current state of residence with "Central Registry". All states will have an office called the "Central Registry". The UIFSA gives custodial parents two choices for enforcement, as it is often easier for local authorities to garnish wages of the payor parent or execute an arrest in the event of a contempt. This means that while you may want to enlist Pennsylvania's help to start a enforcement action, it will likely have to occur in the the state of current residence. Typically, your child's father's resident state has the most power to enforce the order, but again, may not modify or make any changes. With respect to child custody, if one parent moves far enough away that the current schedule is no longer practical or possible to follow, if there is an official child custody order with the court, a Petition for Modification of A Child Custody Order should be filed in the issuing state. These petitions are filed when a a request to change the custody order is being made based on a substantial change in circumstance. Typically, this is filed by the party making the substantial change in residence. However, if they fail to do so, you may find that this burden defaults to you. While the order is considered to remain in place until officially modified and you are unlikely to be found in contempt for failure to abide by 100% of the terms if they have become unduly burdensome. For example, if your order specifies shared transportation, you cannot be reasonably expected to continue providing such transportation if the distance between your residence and the child's Father's residence has increased from 5 to 30 miles. Implicit and often explicit in the terms of your custody order are that the terms are conditional upon the geographical proximity that parents have to one another. In fact, a parent may not move with their child any distance far enough away to impeded the other's parent's custodial rights. When the custodial parent does this, it is considered a "relocation", and they are required to file a Petition for Relocation with the court. However, when a non-custodial parent is the person changing residence, no such terminology applies and a standard Petition for Child Custody Modification is appropriate.
- Q. Father got new charges for DUI, can I file for contempt?
- A: You may file a Petition for Contempt of Custody Order against your child’s father if your order clearly states that he is to abstain from the use of alcohol. A failure to abide by and follow the terms of a court order is typically grounds for a Petition for Contempt. However, depending on the urgency of the situation, you may want to consider filing a Petition for Emergency Custody. Depending on what county you are located in, it may take the Court weeks to months to hear a standard non-emergency. Emergency petitions, if granted or found to have a legitimate basis for the purpose of a hearing, could be listed within a matter of days. Regardless, if you have a true and valid reason for filing and Petition for Emergency Custody, and are able to articulate this reason clearly in your petition, the matter should be listed significantly faster than a standard petition such as Petition for Contempt. Before you file an emergency, you need to validly assess whether you meet the qualifications and criteria that will be considered by the Court. Emergency petitions may be filed when you are in fear that the child may be at risk of, or currently in immediate harm, or has been or is about to be removed from the jurisdiction. One parent abusing drugs or alcohol has been the frequent and continuing subject many emergency custody petitions. You must weigh your objective and subjective view of how immediate and apparent the risk of harm to your child may be. If your child’s father has a long history of alcohol abuse, to such an extent that he had to have supervised visitation for a period of time, you may feel that it is not safe for your child to be in his father’s unsupervised care. In other words, an emergency petition would be appropriate if you believe that your child’s father may abuse alcohol in the presence of your child, and that it poses an immediate risk of harm.
- Q. My ex-wife has 3 kids and I have been hearing all over town that none of the kids are mine and the state of PA
- A: First and foremost, it appears that you are having an issue with both paternity and child support. Typically, both of these matters are handled in the Domestic Relations section of your local Court of Common Pleas and are automatically addressed when the parents are of a child for whom support is being sought were unmarried at the time of his or her birth. However, if your children were born during the marriage, you are considered the putative father, which means that you are assumed to be the biological father and held financially responsible for the children until proven elsewise. However, if you have questions about the paternity of your children, you may file a Complaint to Establish Paternity and for Genetic Testing, pursuant to 231 Pa. Code Rule 1930.6. Paternity Actions. This is a link to the statute page and provides an explanation of when, why and where you would want to file this petition, as well as providing a form for the complaint: https://www.pacode.com/secure/data/231/chapter1930/s1930.6.html When you file this complaint and serve it to the opposing party, you will receive a notice of court designating a court date for the matter to be heard. However, until and unless you can prove otherwise, you will remain the punitive father of all children born of the marriage and will continue to be held financially responsible for those children. You will remain responsible for paying any child support orders currently in place with the Court. To change or be absolved of the responsibility to pay a child support order, you must file a petition to modify or terminate that order with the Court that issued it. In order to have a valid reason to do this, you must assert that there has been a substantial change in circumstance that would significantly affect your ability to pay the current running order. The designation of disabled would meet the criteria of "a substantial change in circumstance", and thus would be a valid and legitimate reason to ask the Court to reconsider the amount and whether you should be required to continue paying child support. Additionally, the statement that disabled individuals are not required to pay child support is wholly inaccurate. If you are designated disabled, and have a running support order, nothing changes unless you file something with the Court. The amount and whether you have to pay depends specifically on your unique situation. It is important to know and remember that social security disability (SSD) is included as a form of income for child support calculations. This means that even if you are unable to work, if you receive SSD, it will be used to determine your child support and garnished accordingly. You may be confusing SSD with SSI, which is awarded to individuals with low incomes, and thus is not garnishable for a child support order. If you truly believe that there may be some legitimacy to the rumors that your children may not biologically be yours, I would suggest that you simulateously file both a Complaint to Establish Patenity and for Genetic Testing, and a Petition to Modify Child Support on the basis of a substantial change in circumstance, namely that you have been designated as disabled and are receiving social security disability (SSD). The Court will schedule separate hearings for the paternity complaint and child support petition. For paternity, the outcome of the court hearing will likely be that a paternity test is ordered. For the child support petition, a hearing will also be scheduled where a new amount of child support will be re-calculated, using your disability benefits and any subsequently awarded derivative benefits. Therefore it is likely that your payment will be lowered, and possibly terminated, depending on your unique situation. If you have a running child support order, it is always best to file a petition immediately, as the modification will be retroactive back to the date of filing.
- Q. I misplaced my order for custody. I would'nt want to be held in contempt. How do I get a copy of my order?
- A: It is very easy to obtain a copy of your current custody order. The fastest way to do this would be to go to the Prothonotary of the courthouse where your case is on file and the Order was initially entered. Remember to bring a copy of your photo I.D. and cash to pay for the copy pages. If you have an attorney, you may ask them to send you another copy, however, while this method may be faster for you, always be aware that you will likely be charged on an hourly basis for their time and it may be cheaper to get it yourself. If you are not represented or it is extremely inconvenient or impossible for you to physically travel to the courthouse, I would recommend calling the courthouse information line and asking to be connected to the civil division of the prothonotary. When prompted, request to speak to someone in the family law section and tell them what you are looking for. They should be able to give you instructions on how to request that a copy be sent to you via mail. It is always best to ask for specific instructions in that instance, as every state and county may be different, and have different procedural requirements to obtain a copy of your custody Order in this manner. Good luck!
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