DIVORCE Should I Stay or Should I Go Now: A Legislative Update

Some of you may have read my prior blog posts regarding establishing separation and how that can affect your rights to support, custody, equitable distribution, and ultimately, a Decree in Divorce.

As I mentioned in those posts, in Pennsylvania we have what we call a two-year waiting period. What this ends up meaning is if one spouse wants to have a divorce and the other does not, the parties must be living separate and apart for a period of at least two years before the court has the right to issue a Decree in Divorce. For example, here in Allegheny County you cannot even have a meeting with the judge and start talking about the distribution of your assets until that two-year mark has been reached. (Obviously, this is not true in cases where you want to work together to try to reach a resolution, mediate, collaborate, etc. You are free to discuss these issues at any time. This is one of the advantages of pursuing resolution of your matters outside of the court context).

For a very long time, there have been concerns that this two-year waiting period is not necessary, and that it needlessly prolongs the divorce process and otherwise makes things longer, more costly and more difficult for the parties. It should be noted that the separation period used to actually be three years and was moved down to two sometime ago. There has, intermittently over the last several years, been a push to try to reduce the two-year waiting period to a one-year waiting period. A one-year waiting period would be more consistent with many of our neighboring states, some of which require only six months between separation and when the court has the right to enter a Divorce Decree. House Bill 380 was introduced to reduce two-year waiting period down to one.

This legislation was proposed in the House and was approved by the House after which time it moved into the Senate. As of last week, the Bill was approved by the Senate’s judiciary committee, with only one of the fourteen votes being against it.

It is anticipated that the Senate is going to have a full vote on the fate of HB 380 in the near future. Under the terms of the Bill, it would be effective sixty days after its passing. So, the waiting period could be changing soon. The potential of changes to this waiting period may be something you wish to consider, when determining whether or not it is in your best interest to separate at this time.

I will keep you posted as to when this goes to a full vote and may be signed into law. For now, the two-year waiting period remains, but this may not be the case for much longer.

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CHILD CUSTODY - Who's the Boss? An Introduction to Legal Custody

When most people think about custody, they think about where their child is going to be, with whom and at what time.

This first kind of custody that most often comes to mind is what we call physical custody.  It is the actual schedule that dictates with which parent (or grandparent or in loco parentis person) a child will be with at a particular period of time.  The physical custody components may include rules for vacations, holidays, when and where you meet, etc. 

However, as most folks know, there is a whole lot more to raising a child than just showing up somewhere.  That is where we get to the second type of custody that people don’t think about nearly as often. 

This second component is what we call legal custody.  There are a lot of different ways that parties can divvy up the physical custody time with the child: equally shared, shared, primary, partial, visitation, supervised, etc.  These are all terms that have to do with the amount of time a party has with their child.

Shared legal custody is, in some ways, much more simple and, in other ways, much more complicated. 

There are only two answers with shared custody: yes or no.  The answer is going to be “yes, you are sharing legal custody” in about 99.9% of cases.  Unless someone is currently incarcerated or has habitually been just a raging, uncooperative pain in the ass, legal custody is typically shared.

So what is “legal custody,” you ask?

Legal custody is, in essence, decision-making rights.  While you needn’t agree on the most minute of issues with regards to your child (i.e. skim milk or 2% milk?), you are expected to be on the same page for the major, life-altering events such as education, religious upbringing, medical decisions and the like.

 These major decisions tend to trickle down into some smaller ones.  For instance, what type of activities your child will participate in, will they play travel baseball, who is going to be responsible for getting them there, etc.  Some of these smaller decisions, as far as participation in activities, can have major impacts on what your physical schedule looks like. It is very difficult for a child to spend weekend time with one of their parents if weekend time is being eaten up by going out of state for travel sports events.  Deciding to commit your child (and therefore, your-co parent) to these types of activities is part of legal custody.  Neither parent should be making decisions that significantly infringe upon the time spent with the other parent over the other parent’s objection or without their knowledge.

If you are sharing custody, a child’s participation in sports or other activities is likely going to affect both parties’ custody, and they need to be on the same page before anyone starts signing Johnny up for baseball or even talking to him about whether or not he would like to play.   Grownups need to be the ones making the decisions here, and simply because a child says he would like to do something doesn’t mean that is the definitive answer if the other parent is not in agreement.  It’s also not fair to tell your child they can do something before having this sort of conversation with the other parent. 

Similar ideas apply in medical situations. If Johnny is on his way to the ER with one parent, the other parent should be called.  They should know what is going on as it is happening, not days later when you get around to it. Even more routine doctor visits should be discussed between the parties, at least until they work out a system of how those are handled. You probably both don’t need to be standing in the pediatrician’s office for every single well visit, but you ought to be on the same page as to who your child’s doctor is, how to get ahold of them, and when your kid needs to go see them. 

As I have mentioned previously, you can end your relationship with someone as your partner, but you cannot end it as co-parents.  You need to be able work together to address the decision making aspects of raising your child together.  There are some ways to work through these, be it through co-parenting counseling, mediation sessions, or perhaps even voluntary parent coordination.  However, as more and more parents are sharing custody of their children, these legal custody issues are coming into play in front of judges in Motions Court when parties can’t work through disputes.  I can assure you this is not anything that the court likes to see.

In my next post I will discuss how counselling, mediation, or parent coordination can help you work through these issues before you end up in Court.

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