Category Archives: Family Law

Husband will not give my son back

Q: My husband who no longer lives with us took our son to spend time with him but won’t return him, how do I get him back? We live in Pennsylvania. My husband moved out in the first week of December last year. He is emotionally and physically abusive. I have had the chance to leave him several times but became one of those victims that always goes back. Well I am happy to say I am no longer going back. Yesterday, my husband showed up wanting to see our son so I let him. Now he won’t give him back. There is no custody order and no divorce papers, yet. How do I get back my son?

A:  You have to file for custody in court. Without a custody court order which spell out which parent has physical custody, which parent has visitation, etc., unfortunately, either parent can keep the child from the other parent, as harmful as that may be to the child. I would advise getting a lawyer. The lawyer can start the custody process. This would be by going to motions court and getting an emergency temporary custody order then simultaneously filing for custody mediation, which is mandatory in Allegheny County.

 

Can we use a self-prepared custody agreement?

Q: If using self prepared custody agreement, signed by both parties & notarized, do I file anything with Allegheny County courts? I will have sole physical custody of my son & both his father and I will sign the document and have a PA notary witness it. I just want to make sure he can’t take our son without permission since his “family” and friends are out of state.

A: This is highly inadvisable. This “self prepared custody agreement” will not be worth the paper it is written on if there is a disagreement over custody. Only a custody order of court with a judge’s signature on it which states who between the warring parents has physical custody and who has visitation, and when and where such visitation occurs, is binding and can be legally enforced. Without a custody order, either parent can move the children out of state or even out of the country. I would take your agreement to a lawyer who can then turn it into a Consent Order of Custody, and present it to a judge for signing. If you cannot afford a lawyer, you may be able to do this through Allegheny County’s pro se court.

Underage drinking, again. Any advice?

Q: Can I get a third underage drinking charge changed to disorderly conduct?

A: With this being your third underage drinking case, you are unlikely to get a break. Generally, with the first violation of 18 Pa. C.S.A. 6308, you can receive a 90 driver’s license suspension, a one-year suspension with the second offense and a two-year suspension with the third. I don’t foresee the police cutting you such a break and I wouldn’t count on it. I would hire an attorney to see if you have a defense which may lead to a dismissal or force the police to offer such a deal you are looking for.

Mom deeded farm to my siblings.

Q: My mom may be a vulnerable adult. In May of 2013 she had mild stroke. I found out that around that time my sister and brother bought her farm in Washington County by deed from her for 1000 dollars per month. The value of the land was once appraised at $237,000.00 dollars and is now paying $7,500.00 per month in gas rights, which I didn’t know until now. Does this sound right?

A: There is not enough information here to give you any reliable answer. I assume you are alleging that your mother was not competent enough at the time she deeded the farm to your siblings at such a low price. If so, if you can prove that your mother was incompetent when she sold, you may have a remedy in that you can go to court on a petition to rescind or nullify the deed. You would need a lawyer for this procedure. In order to prove your mother was incompetent at the time she signed the deed, you would need medical proof to back your claim up. This could be accomplished by an opinion of her doctor. I would pay a lawyer a retainer to look at this situation

We are transferring physical and legal custody to a family member. Is it permanent until the kids are 18?

Q. My husband & I are transferring physical & legal custody of the children to a family member. It is my understanding this will be permanent until they reach age 18. Is that correct?? Or can that order later be broken such as in a divorce or any other situation?

A. The answer depends on how you are transferring custody. There is a different procedure if it is child custody in adult Family Division, as opposed to under a guardianship or under juvenile dependency law. You should consult an attorney to review your rights. I assume you are doing it in adult Family Court? If so, make sure your attorney titles the order “interim”, which means temporary. This way, it can be modified in the future. If you are doing this under jurisdiction of juvenile dependency rules, you will want an order for Permanent Legal Custodian, or PLC, which can be modified in the future. It could be that you don’t need court involvement at all, which would actually be better for you in regard to returning custody to you in the future. Since I do not know all of the facts here, you really should sit down with a family law attorney and thoroughly discuss the entire situation.

Is the Acceptance of Service for my divorce complaint valid if signed in pencil?

Q: I had a state constable serve my divorce papers to my husband. When he brought the signed Acceptance of Service back to me, I discovered that it was signed in pencil. Is the document valid? I talked to the constable and he said it is valid because no matter what it was signed in, he witnessed his signature and as an officer he can be called upon to testify and confirm the signature if necessary. Is this true? This document will start our 90-day waiting period and I don’t want to go the whole 90 days only to find out later that the signature isn’t valid.

A: I know of no such law which invalidates signature in pencil. I think the constable is correct and I think you should file a Proof of Service document with the Prothonotary which has the return card bearing the signature of your husband, attached to it.

Just moved to PA from another state, can I file for support?

Q. I have a sole legal custody of my child. The other parent has visitation rights. I moved to Moon Township Pennsylvania on September 15th with my child. I got a very good job and plan to live there and all my life. The other parent lives in other state, and has only visitation rights and sees the child every other weekend. Can I apply for child support as I have a custody but am not a Pennsylvania resident yet?

A: I question if you violated a custody rule or your custody order in the other state by moving here. Had you moved from PA, the other parent could have filed for a relocation hearing. Yes, you can get child support, but the jurisdiction may be in the other state if you have not resided in PA for six months, and therefore do not yet meet the residency requirements of PA. You can file yourself in Allegheny County and I feel you should be able to file for child support even without yet having residency.

Will having a baby with my boyfriend effect my divorce which is pending?

Q. I am a little over a year into a divorce. My ex is not responding to anything so I have to wait 2 years. Will my having a baby with someone else affect my divorce.
A. Under the Alimony statute, marital misconduct prior to separation can be a factor considered by the court with along with 16 others, when the court determines if alimony is appropriate and the amount that should be paid. Some judges don’t consider this factor; however it is in the Divorce Code. If your consummation of the baby occurred after separation, it should not hurt any chance of pursuing alimony if you choose to do so.