Warminster, PA asked in Family Law, Child Custody and Civil Litigation for Pennsylvania

Q: custody, bucks co. PA what pleading should i file after custody hearing officer's recommendation before it becomes order

we had signed agreement in Aug, 2021 for shared custody in bucks co, pa. My ex filed emergency petition to modify based on false allegations ( i have a proof). We had custody officer hearing , did not agree and i asked to see the judge. we saw the judge , it was also called conference. I did not have an attorney. After that, his lawyer sent me proposed order where my fiancee had no right to sleep in my house at night ( unreasonable, his name was not in his petiition, he has no history of abuse and great relationships with my daughter . They referred to records of children protective services report that was " unfounded" . I did not sign that but court issued an order saying that 'by agreement of parties , repeating that provision " . we both( with ex) agreed it was unreasonable and we ignored it for two years,. my ex filed for contempt regarding this and petition to modify. We had conference . what can i file to stop conference officer recommendation from becoming an order?

1 Lawyer Answer
Peter Christopher Lomtevas
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  • Divorce Lawyer
  • Schenectady, NY
  • Licensed in Pennsylvania

A: Pennsylvania family law cloaks the process to make it appear fair, equitable and just. Nothing is farther from the truth.

Family law structures custody proceedings to occur before an under-judge called a "conciliator." This is mediation ordered to have the parents reach a settlement of their custodial differences. This process almost always fails because Pennsylvania's superior court drives shared parenting as the standard in all custody cases. Shared parenting is defined as 50/50 custody which works in some cases and does not work in others.

For example, a mother who was raped in the streets can find herself before a conciliator facing the rapist who is automatically entitled to 50/50 custody of his child. If the mother balks, she gets the label of scofflaw should the child refuse to live half time with the rapist. Mother can also acquire the label of "uncooperative" which eventually leads to sanctions for - as the custody contempt statute says - "obstreperous and obdurate" conduct which includes money fines, counsel fees, and jail.

Another example is the one where either parent vanishes from the home, and another is that one parent works in the field (a truck driver, an emergency room nurse) and cannot care for a child half the time. Only two sedentary parents with ordinary day jobs can sustain a split schedule, and such parents are the exception in today's failing economy rather than the rule.

The short answer to this asker's basic question is to file a notice for a de novo hearing. This means the conciliation session was off the record as the statute requires, and an objection to the session requires a recorded trial before the judge. The pitfalls are legion.

This asker also adds another factor which complicates her situation. She cites to a current order of the court which from her facts appears to indicate an accusation of contempt of that order. The contempt appears to be based on the presence of a lover in the asker's home which the order prohibits despite the defects in its entry.

Pennsylvania courts operate on the accusation-is-evidence principle. Here, the other parent structured his petitions so that the court assumes the truth of the contempt, and shows that the remedy is a modification of the custody order. Appellate law prohibits changes in custody as an incident of contempt, but such flips of custody happen all across Pennsylvania. We here cannot read the other parent's petition, but we assume it argues that there is an emergency, and where there is smoke, there is fire to the Pennsylvania judge. The Pennsylvania judge will grab onto those allegations, and decide up-front how to resolve the controversy, and cause grief and pain to the child possibly for years to come. Pennsylvania does not recognize the "mature minor" status of a child, and will instead substitute its judgment for that of the mature child. The results can be as comical as they are saddening.

The best course of action is not to file papers alone based on online, anonymous advice. A lawyer is needed to file the correct papers and properly respond to judicial errors and omissions that cut corners and yield ridiculous results. That lawyer should be private and unfettered by court connections, and should know how to climb the levels of appeal to best protect the family which comes last in Pennsylvania justice.

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