COMMON CHILD CUSTODY MYTHS DEBUNKED
Many of our clients come into our office with the same misconceptions relating to custody of their children. Here are some of the most common misconceptions:
1. My ex doesn't pay child support so I don't have to let him/her see our kids.
This is probably the most common misconception. While most people think custody and support are intertwined, they are completely separate proceedings and generally one does not have any effect on the other. Therefore, one parent cannot withhold visitation from the other parent because child support has not been paid. If a parent withholds the children because the other parent has not paid support, the withholding parent could be found in contempt of the child custody order, leaving open the door for the imposition of sanctions and fines. Also, on the other hand, one cannot refuse to exercise his or her custodial rights in an effort to avoid paying support; in fact, if one parent does not have custodial rights of the parties' children at least 30% of the time, that parent might be ordered to pay more support. This is because the child support guidelines assume that the parent paying support has custody of the child 30% of the time. If this is not the case, an upward deviation to the support amount may be ordered.
2. Mothers always get custody, especially of younger children.
Years ago, it was fairly the norm in co-parenting situations that mom received primary custody of minor children, while dad was permitted partial time every other weekend and one night per week. Many of these arrangements can probably be attributable to the "primary caretaker doctrine." The doctrine, which has since been abolished in Pennsylvania, gave primary custodial time to the parent who was the primary caretaker of any minor children and when both parents were equally fit. Years ago, the primary caretaker was almost always the mother, as many mothers stayed at home while the fathers worked. However, with the abolishment of the primary caretaker doctrine, the courts now determine custody based on the best interests of the child and mothers are given no preference over fathers. Today, many mothers now work and fathers are more hands on than ever before. Consequently, most courts try to give fit parents equal time with their children, as they find it to be more in the children's best interests to be involved in the lives of both parents. Therefore, unless there is a compelling reason to the contrary, shared custodial time, which means equal time with both parents, is usually the "norm" in these proceedings.
3. Parents must exercise the time given to them in a custody order.
It is unlikely that a parent would ever be found in contempt for not exercising their custodial time; courts can't force an unwilling party to act like a parent. Therefore, if your children's other parent is supposed to have them every other weekend, there is likely little you can do to force him or her to exercise this custodial time. On the other hand, if the other parent were to interfere with your custodial time, such as by not returning the children at the designated time, then you could file a motion and have them found in contempt.
4. Older children can pick which parent they will reside with.
While older children may have their voices heard in court in child custodial proceedings, it does not necessarily mean that the child has the final say so. One factor that the court will consider is the well-reasoned preference of the child, based on the child's maturity and judgment. Regardless of the age and preference of the child, the standard is still what is in the best interests of the child, and let's be honest, most children do not know what is in their best interests. For example, a child might say that they want to stay with mom, whose home is deplorable, because mom lets him stay up until 11:00 p.m. each night playing Xbox. Or a child might say they want to stay with dad, even though he is chronic alcoholic, because her best friend lives next door. However, the court will listen to legitimate concerns of an older child. For example, an older child might not want to live with dad because he is always at work and the child is home alone all of the time; this is what the court would consider a well-reasoned preference. The courts, in taking into account a child's preference, will look for signs of influence or coercion by the other parent.
5. The parent with primary custodial rights is the one in control.
There are two kinds of custody recognized in Pennsylvania: physical and legal. Physical is exactly what the name implies: the right to exercise physical control over the child or the right to have the child with you during a certain time period. Legal refers to the right to make decisions, including health, education, and religious decisions, on behalf of the child. A parent may have sole or primary physical custody but have shared legal custody, meaning both parents have equal participation in the major decision making regarding the parties' child. Only in limited circumstances, such as when one parent is unfit to make decisions or if the parents have a very minimal level of cooperation, will the court award sole legal custody to one parent.