Step Number One: The Custody Master's Hearing in Philadelphia
After a party files for custody in Philadelphia, a hearing date will be set to appear before a "Custody Master" at the Domestic Relations Division of Philadelphia Family Court, located at 1501 Arch St, Philadelphia, PA 19102 (215-686-7466), where all Philadelphia Family Law matters take place. "Parties" may be a parent of the child or children, a grandparent, or even a third party under the legal doctrine of "in loco parentis." Parents who never married and grandparents seeking custody, barring extenuating circumstances, will also initially appear before a custody master in Philadelphia. Although the legal arguments in support of a grandparent or third party seeking custody will be different than that of a natural parent, the custody process in Philadelphia remains the same in most instances. (For purposes of this blog, the term "party" will be used interchangeably with "parent.")
Are Children Permitted to Testify at a Custody Master's Hearing in Philadelphia?
Once the hearing date is set before a Philadelphia Family Court custody master, both parties are expected to appear on the scheduled date and time. Children are not permitted to participate in a custody master's hearing in Philadelphia. If a party would like a child to testify, that party, the party's attorney if represented by an attorney, must request in writing no later than 20 days before the scheduled custody master's hearing that the child be allowed to participate. The custody master will make a determination whether the request to have a child testify at the hearing is appropriate and will be permitted. The age of the child is a major factor in the custody master's decision. If negligence or abuse of the child by the party making the request and if the child is prospectively deemed old enough and competent to testify at the pending hearing, the custody master may also be able to consider such information. Per the rules of Pennsylvania civil procedure and Domestic Relations practice, the request in writing to the custody master made by one party must also be made to the other party; this is necessary whether the other party agrees with the request or not.
Pennsylvania law prohibits "ex parte" communications which are one-sided, or unilateral, communications made by one party to the Court without informing the other party or parties of the same. Family Court custody masters and judges are often frustrated by parties who do not respect this most basic provision of Pennsylvania law. Although custody masters and judges may be willing to overlook an unrepresented partie's ex parte communications, some attorneys may also overlook this requirement (or may even actively ignore the requirement in the hope that it will be that attorney's client in a more advantageous position). The requirement that custody master and judges must not be communicated with unilaterally must be respected. To do so otherwise, even if it can put one's client in an arguably more advantageous position, is not an appropriate strategy, and will not be effective in the long-term.
What Happens When a Translator is Needed at the Custody Master's Hearing in Philadelphia?
Another occasional consideration is when a party does not speak English, or is not fluent in English for purposes of testifying at Philadelphia Family Court, and a First Judicial District of Pennsylvania (FJD) translator will be required at the custody master's hearing. Although most custody master's hearing take place without a FJD translator, at times, a mother's, father's, or even a grandparent's English may not be good enough for the custody master to allow the respective party to testify on his or her own without a FJD translator.
When a party files for custody in Philadelphia, one of the questions that is asked is whether the filing party or the responding party will require a translator. The filing party should make this information known to Philadelphia Family Court at the time of filing. If this is information is not made known, and either the filing party or the responding will require a translator at the custody master's hearing, the Philadelphia Family Court Custody Masters Unit must be notified of the need prior to the custody master's hearing so that an FJD translator can be present at the time of the hearing. When a party is represented, the party's attorney should make this information known to the court either at the time of the custody filing, or if necessary, prior to the custody master's hearing.
A Custody Master's Hearing is an "Informal" Formal Hearing
At a custody master's hearing in Philadelphia, the custody master will preside over the matter seated at his or her desk which sits directly across from one table intended for the petitioning party and the party's attorney and another table intended for the responding party and the party's attorney.
The custody master does not sit in as "high" as a position as a Philadelphia Family Court judge, but nonetheless commands authority by the nature of the room's arrangement. The custody master will often convene the hearing by asking the parties and the parties' respective attorneys if there is an agreement between the parties regarding the custody of the child or children.
In many custody matters, the parties are encouraged to come to an agreement if it is possible. There are several reasons why Philadelphia Family Court prefers the parties to come to an agreement regarding matters in dispute. One major reason is that the parties will always know their circumstances better than Philadelphia Family Court. Although not applicable regarding custody master's hearing where the parties' appearance before the presiding custody master is often limited to one appearance, even when parties who are contesting custody appear before the same Philadelphia Family Court judge on multiple occasions, that judge will still not know the parties' circumstances as well as the parties themselves.
Along the same lines, if a custody master can defer to the parties regarding custodial times, when and where pick-ups and drop-offs will occur, and the like, it may allow for an more effective custody arrangement. It is obvious that agreements will not always be possible between the parties; often, there is animosity and discord between parents and one parent or both may be unwilling to cooperate with the goal of coming to a custody agreement. Parents often believe that they know is best for their child or children and may not be open to hearing the other parent's thoughts on the matter. This can include what days of the week a child or children will spend with the other parent, if overnight stays should be allowed, what school the child or children should attend, how holidays and other important days will be divided between the parents, what religion the child or children should be, and so forth.
What Will Be Addressed at a Custody Master's Hearing in Philadelphia?
Both physical and legal child custody can be a source of contention among parents who are contesting custody. At a Philadelphia Family Court custody master's hearing, both will be addressed. When circumstances allow, which most often requires that parties are represented by attorneys, custody masters at Philadelphia Family Court will at times encourage parties to discuss their differences on the day of the custody master's hearing court and to come to an agreement if possible. Custody masters understand that agreements are not always possible, and will not encourage parties to try to come to an agreement if not appropriate. Examples of circumstances that make a discussion between parties at the time of the custody master's hearing not appropriate are if there are allegations of abuse towards the child or a party, if there is an existing Protection from Abuse order, if there are allegations of substance abuse by either party, and so forth. Whether it is encouraged by the custody master or not, if the parties cannot come to an agreement on the day of the hearing, the custody master has several options.
What Happens if Parents Cannot Come to an Agreement at a Custody Master's Hearing?
As frustrating as it may be to the parents (and also the child or children), the custody master can decide to not address custody in any capacity and instead schedule the matter for a custody hearing before a Philadelphia Family Court judge. When this occurs, it can take several months at a minimum to appear before a custody judge because of how many custody petitions are hearing at Philadelphia Family Court. Circumstances that may necessitate a custody master not entering an even an interim custody order are similar to what is noted above: allegations of abuse towards the child or a party, if there is an existing Protection from Abuse order, if there are allegations of substance abuse by either party, and so forth.
Unless a parent files for expedited custody or emergency custody, the parties will have to wait until the hearing date to appear before a Philadelphia Family Court judge which is set at the custody master's hearing. Emergency custody filings can be made any business day at Philadelphia Family Court, but parents must understand that Emergency hearings are only granted in extremely limited circumstances. Abuse or neglect are grounds that will allow for an emergency hearing to be granted. Unless such extreme circumstances are alleged, an emergency hearing will not be granted. Expedited custody hearings can be requested on Mondays only, and although expedited custody hearings are granted more often than emergency custody hearings, it can nonetheless take several weeks if not longer to have an expedited custody hearing. In addition, both expedited and emergency custody hearings are "limited" proceedings in that the Philadelphia Family Court judge will not hear and decide all custody issues in dispute. The judge will only address the most important considerations at a expedited or emergency custody hearing, and will have the later "full" custody date remain on Philadelphia Family Court's calendar.
In the alternative, the custody master can decide all aspects of custody, including which parent will be awarded physical and/or legal custody, or if custody will instead be "shared." If custody will not be shared, the custody master can award one parent primary physical custody and the other party partial physical custody; in some instances, the custody master will limit one parent to visitation of the child or children. The custody master can also consider all issues related to custody, including: which parent will get the child / children which days of the week / month; if overnight stays will part of the custody arrangement; when and where pick-ups and drops-offs will take place; which school the child / children will attend;which parent will have custody of the child / children for holidays and other important days such as birthdays, etc.; and so forth.
The most important consideration in whether a custody master will make such a custody arrangement is whether the parents have an existing custody order or not. The reason is that a custody master's proposed custody arrangement cannot supersede an existing custody order that was signed by a Philadelphia Family Court judge. If there is an existing custody order (which will always be ultimately signed by a Philadelphia Family Court judge), and regardless of whether the existing custody order was the result of an agreement between the parties or after a hearing before a custody master or a judge, the custody master must schedule the matter for a subsequent hearing before a Philadelphia Family Court judge. Another important consideration is that the subsequent date for a hearing before a judge is usually several months after the scheduled custody master's hearing.
Differences Between an "Interim" Custody Order and a "Final" Custody Order
If the custody master decides custody, the custody master can either enter an "interim" order pending a hearing before a Philadelphia Family Court judge, again, which will take place several months later, or can enter a "final" order which will be nonetheless be signed by a Philadelphia Family Court judge at a later time to make the order "final." If an "interim" order is entered by the custody master, this often indicates that there are unresolved issues that may not have been able to be addressed by the custody master, and which will presumably be addressed at a subsequent hearing before a judge.
Parents are often encouraged to have the judge hearing scheduled at the custody master's hearing because if the parties find that the order proposed by the custody master needs to be addressed at a later time because, for example, specific custody issues need to be revisited, or if the proposed order is not working as intended, and so forth, the parents will have to wait that much longer if they do not schedule the judge hearing at the custody master's hearing, but instead find it necessary to schedule it at some later time. Ultimately, the longer a party waits to schedule a judge hearing (or a custody master's hearing for that mater), regardless of the reason(s), the longer a party will have to wait to have the hearing.
If parents request that the custody master's order be an "interim" custody order pending a judge hearing to either address additional custody issues or to revisit specific custody issues, the parents, or their attorneys, can cancel the judge hearing before it takes place. The alternative, as noted above, is that a custody master can enter a "final" custody order and not scheduled a subsequent hearing before a judge. If the parties are absolutely certain that the final order as entered by the custody master will be to their satisfaction, this may be an appropriate course of action. The concern is that if unexpected custody issues arise after the final order is entered, again, the parties will have to wait that much longer for the opportunity for the matter to be heard by a judge.
What Happens When There is a Change in Custody Circumstances?
Circumstances often change over time, and parents will always be able to petition Philadelphia Family Court when there is a change of circumstances. A substantial change of circumstances is often required for the Court to entertain a custody petition once an order is entered, but parents will always have the option to have the matter addressed by the Court as necessary. It is necessary to understand however, that as pressing a desired modification in custody may be to a parent (or child or children), unless there are extenuating circumstances that will allow for an expedited of emergency hearing (extenuating circumstances that often are not welcome because of the usual negative nature as to why a custody petition is deserving of an expedited or emergency hearing), often a significant amount of time will pass before the matter, concerns, and so forth, can be addressed by Philadelphia Family Court because the Court's calendar is so full.
Because a custody master's hearing can proceed in various manners, and because so much is at stake, it is critical that parents who are contesting custody not only understand the process, but make informed decisions that will allow for the best possible results regarding the custody of their child or children. A Philadelphia custody attorney can assist parents with making the best decisions not only for themselves, but for the child or children involved. A Philadelphia custody attorney can also make sure that not only will the parent's interest be protected, but that the child's children's interested will also be protected.