Child Custody, Visitation & Relocation

Parent Does Not Maintain Custodial Rights Over His Child Attending High School After The Child Reaches 18 Years

In the child custody, family law case of Lopez v. Vasquez, PICS No. 15-0085 (C.P. Delaware, Jan. 2015), the Honorable Barry C. Dozor found that no statute or case law provided that a parent maintained custodial rights over his child or any child for whom there was a custody order after the child reached 18 years of age, even if the child was still in high school and an emergency custody order was therefore unavailable.  Thus, Judge Dozor ruled that the denial of emergency relief should be affirmed.

In October 2014, the attorney for plaintiff Lina Tema Lopez simultaneously filed a “complaint in custody” and a “motion to incorporate stipulation for custody” with the “stipulation and agreement of custody” in this matter. The action was assigned a custody hearing date before a master.

On Dec. 5, 2014, Lopez and the minor child, Patricia Guadalupe Felix Coronado, appeared before the master, who authored a temporary custody order providing Lopez with temporary legal and physical custody of Coronado. The court signed the temporary order on December 8.

Immediately after the master’s issuance of the temporary custody order, Lopez filed a petition for emergency relief on December 5. On December 8, the court denied the petition, noting that Coronado was no longer a minor child as her 18th birthday passed on December 6.

Lopez then simultaneously filed a petition for reconsideration of the denial and “plaintiff’s exceptions to master’s recommendations.” The court consolidated the petitions and scheduled a pre-trial conference for February. However, on January 7, Lopez filed an appeal with the Superior Court. She alleged that the court erred in (1) refusing to sign the stipulated custody agreement and by signing the master’s temporary custody order as that order did not make a finding of abuse, abandonment or neglect or find that it was in the child’s best interests not to return to Guatemala, and (2) determining that the request for emergency relief was moot since, although Coronado was 18, the court continued to have jurisdiction because she was still enrolled in high school.

Analogizing to the support statutes that permitted the court to retain jurisdiction to require parents to continue to support a “child” who was no longer under the age of 18 so long as the “child” remained enrolled in high school, Lopez argued that because Coronado remained enrolled in and was attending high school, she was jurisdictionally a “minor child” over whom the court retained jurisdiction for purposes of determining custody.

The court found no support for Lopez’s position. It said there was no analogous statute or rule of law or case law in Pennsylvania that provided that parents maintained custodial rights over their child or any child for which there was a prior custody order after that child reached the age of majority in the United States, i.e., 18 years old.

The court also noted that 23 Pa.C.S.A.5321 (a) contained the definitions of Chapter 53: Child Custody. It defined “adult” as “any individual 18 years of age or older” and “child” as “an unemancipated individual under 18 years of age.” Similarly, the Uniform Child Custody Jurisdiction and Enforcement Act defined “child” as “an individual who has not attained 18 years of age.” Finally, the court noted 23 Pa.C.S.A.5101, provided that any individual who had reached the age of 18 or older could enter into their own contracts and could on their own sue another individual or be sued by an individual.

Accordingly, the court concluded that it correctly found that Coronado was no longer a “child” for which emergency relief in the form of a custody order could have been entered.

Finally, the court noted that the stipulation of custody had not been presented to the court but to the master. Moreover, after reviewing it and other documents submitted, the court noted the absence of signatures, notarization, and indications as to who translated some of the documents.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 38 PLW 89 (January 27, 2015)

Filed Under: Family Law, Child Custody, Age of Majority

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