Legal Question in Family Law in Pennsylvania

Child Wishing to Change Custody

My children are 14 and 10 and have refused to return to their father. Petition for Sole Custody was filed in 8/1999. Pre-trial praecipe was filed 12/99. Fayette County changed procedures to a mediation process prior to hearing being scheduled. Mediation process never addressed custody. Demand for Hearing was filed 5/2000. Guardian ad litem was appointed and discovery allowed. Mediations continued and still no hearing. Mediation never addressed custody. Children refused in 7/2001 to return to their father and mediator informed us that the custody matter was no longer before her. No motion to withdraw was ever filed and nothing supports her assumption that the custody matter was resolved in the file. Children are again with me and due to go back to dad 8/2001 and have told their attorney they refuse. What should my attorney and their attorney be doing?

Asked on 8/22/01, 12:12 pm

3 Answers from Attorneys

Thomas McCarthy, Sr. Thomas McCarthy, Sr., Esq., P.C.

Re: Child Wishing to Change Custody

Question. HAs a court ordered custody to you, and visitation to the childrn's father?

Who sued for sole custody in 1999.

If there is a court order relating to custody,

precisly what does the the court order say?

Answers to these questions might enable me, and perhaps others to make soem recommendationd.


Tom in Md..


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Answered on 8/22/01, 10:45 pm

G. Joseph Holthaus III Law Offices of G. Joseph Holthaus

Re: Child Wishing to Change Custody

First, I do not want to second guess your attorney or your children's attorney.

Your attorney obviously has more information at hand than I and should have a strategy for

your case. So, you should inquire as to what your attorney is planning. Remember that

most domestic legal work bills by the hour so it is to your financial benefit to keep this

call as short as possible (but, for your mental well being, you need to be informed). Your attorney

is required to keep you reasonably informed about your case, progress, and strategy.

Now to the substance of your question. Since a hearing was requested 05/00 and, prior to this, the required

mediation was pursued, a motion to answer the request for hearing should be submitted. The motion for an answer

to the requested hearing should include copies of the requested hearing (i.e., the 05/00 demand for hearing) and

should include either a statement by the attorney that the mediation requirement was fulfilled or a copy of the mediation

disposition brief. The motion should include a request to docket the case as a Maryland there is a specific

form to accomplish this objective. Your children's attorney should also be motioning for the same (i.e., a judicial

review of the demand for a hearing). Your attorney, your children's attorney, and quite possibly your husband's attorney should

be demanding disposition on the request for hearing made on 05/00 and these requests should be cross-referenced within each other to assist the

court administrator.

Now, there is a question. If mediation never addressed custody and the matter has never been adjudicated in court, how is it that you say, "The children

are due to go back to Dad on 08/2001"? Is this by a custody agreement? If this is the case then you have other actions that may accomplish your goal. You

could try to negotiate a modification with your ex-husband, either directly or through your respective attorneys. Or, you could file for a modification of custody.

Questions exist of what exactly has occurred and why the 05/00 demand for hearing went unanswered. There is a chance that an adminstrative error has occurred and

your hearing was not docketed as a result. Other questions exist regarding the mediation and why it did not address custody. You could re-enter mediation and insist that

the matter of custody be addressed. Another aspect, although not central to your current issue, is whether the mediator breached his/her contract with you or has performed

in an insufficient manner with regard to domestic mediation requirements in your State.

DISCLAIMER: Nothing in this correspondence is intended to be legal advice and no inference thereof should be taken. Consult with your attorney for legal advice. If you are displeased with the service of your current attorney, seek advice from another attorney. If you

do not have an attorney, you should obtain one.

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Answered on 8/23/01, 10:21 am
Carolyn Press Chung & Press. P.C.

Re: Child Wishing to Change Custody

I assume that this mess has been proceeding,or not proceeding,in a Pennsylvabnia court, since there is no Fayette County in Maryland. It is not clear whether you or the children's father lives in Maryland, but I assume that you and the childen are represented by Pennsylvania lawyers. Since you speak of the children as being due to return to their father soon, it appears that there is some kind of custody order in effect, unless it is an agreement between the parents. If it is an agreement without an order of the court, it is not enforceable by contempt sanctions. Your lawyer and the children's lawyer should be finding out what the delays are about and and get a hearing scheduled.

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Answered on 8/24/01, 4:33 pm

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