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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

SERVING DIVORCE PAPERS VIA FACEBOOK

Posted in Divorce, Practice Issues

Facebook continues its march towards recognition as a stable and reliable mode of legal publication and evidentiary source with a recent decision by Manhattan Supreme Court Justice Matthew Cooper’s ruling that an estranged wife’s attorney may serve divorce papers to her husband through Facebook’s direct messenger system. That this decision occurred is not surprising since Facebook is being increasingly utilized as sources of evidence and, as of last year, a way to send legal notice to a person.

While this decision is making headlines, it is not as groundbreaking as it may seem: service by publication is a time-tested and acceptable method for serving legal notice of a lawsuit. Of course, notice by publication currently involves the use of newspapers which are plagued by declining circulation and commonly perceived to be a dying medium…or at least a medium where the average person is not perusing the legal notice section to see if they’ve been sued today.

Justice Cooper did not arbitrarily allow for this method of service by wife. Many courts do not allow service by publication until the litigant has shown they exhausted all other options for service, so this recent order should not be viewed as overly permissive, but as a reasonable and logical accommodation to a very specific, difficult situation. In this case, the husband had no discernible physical address and after what is described as an exhaustive search using a private investigator and search of public records, the wife appealed to the Court to grant her the ability to serve her husband at the one place he could be reliably found: logged onto Facebook.

Despite this order from the court, do not expect to see Facebook replace the standard modes of legal service. Typical legal process requires that a plaintiff serves a defendant personally with legal papers. Whether it is a divorce or a civil action, a plaintiff has the obligation to make sure the defendant is personally served with the legal documents; otherwise they cannot proceed with their case. This general rule is not without exceptions such as serving a competent adult at the person’s residence or having the defendant pick up a certified letter at the post office. All those other examples, however, rely upon having knowledge of where to find the defendant.

The reality of this case is that Justice Cooper’s order makes sense. If the point of legal service is to ensure that the defendant knows he’s being sued and can raise a defense, what is the point of the wife paying to post an ad in a newspaper which almost surely never be read by the husband when three emails over three weeks will accomplish the same thing?

This is not a drastic shift in how our legal system will work; this is merely an acknowledgement of a newer, more effective, and more specific service tool at the court’s disposal. Publishing ads in newspapers did not become the sole method for service, so I doubt service by Facebook will ever be the first option for legal service, but it absolutely has a role as an alternative method for service where the circumstances warrant it.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

TIP FOR EMERGENCY MEDICAL SITUATIONS: CALL THE HOSPITAL SOCIAL WORKER

Posted in Practice Issues

Accidents happen and there are times when minutes or hours can be critical to a person’s survival or recovery. These can also be times when a family member or spouse is thrust into a decision-making role which they are either physically, psychologically, or emotionally unfit to handle. In such situations, it is not uncommon for the family to call their lawyer or a friend who is a lawyer to help them determine their options.

I was recently confronted with a situation by a colleague of mine: a family was badly injured in an accident with the children and father being unconscious and needing surgery while the mother, though conscious, was not emotionally equipped in her condition to make medical decisions for her husband and children.

My colleague is the friend-who-is-a-lawyer and is doing his best to help the family during their emergency.

The question was what could be done to take that decision-making out of Mom’s hands quickly, voluntarily, but that she could easily reclaim when she had recovered further. Due to being conscious and competent to make decisions, we could not pursue any incapacity claims through the Orphan’s Court and that process would take too much time, anyway, even as an emergency matter.

Our client’s children are being treated in the ICU of their hospital. Having had the experience of being a parent with a child in that unit, I immediately knew the answer to my colleagues question was with one of the hospitals best non-medical resources: their social workers.

Most hospitals, but children’s hospitals in particular, staff their floors with social workers whose job is to help families navigate the variety of services and programs that may be available to them. This can be critical for helping a family enroll a disabled child in Medicaid or finding counseling for grieving parents.

I recommended to my colleague that they contact the ICU floor’s social worker and see what they had available to accomplish this narrow and targeted relinquishment of decision-making authority. The social worker for the hospital knew the answer immediately and provided us with a medical consent authorization form within minutes.

Using this form, we were able to have our client transfer to a family member her power to consent to necessary medical treatment to her children and her husband. She was able to focus on her recovery and not exacerbate her emotional trauma by being forced to make decisions on the treatment of her family.

We now keep this form ready in our litigation and estate planning departments in case of any future emergencies. Knowing there are resources like social workers in hospitals, however, has value unto itself and should be kept in mind as one of the first people to be in contact when trying to manage a medical emergency.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

CAN GRANDPA BECOME PA? THE EVOLVING PENNSYLVANIA FAMILY

Posted in Adoption, Custody, Practice Issues

The recent Superior Court decision In re Adoption of M.R.D. and T.M.D. offers a new challenge in the context of who can be an adoptive parent.  While in her early 20s a young woman ventured to South Dakota to teach school.  She met a young man in 2002 and when she returned to Pennsylvania in 2003, he briefly followed her back here.  Just before he returned to South Dakota, it would appear that Mother became pregnant with twins.  They were born in Pennsylvania in October, 2004.  At the time Mother was living with her own Father.  The Father of the children did visit Pennsylvania to visit shortly after the children were born but he then returned to South Dakota and did not come back until 2006.  That trip was also a brief one and the Father did not encourage any visits in South Dakota by mother and children.  Later in 2006, Mother and the children moved into a rental home owned by her father.  South Dakota Father was aware of this move but little else changed and Father was last heard from in January, 2007.

In January 2013, Mother filed to terminate Father’s parental rights.  This appears to have been in response to Father’s action requesting an award of custody.  At the time Father had not seen the children in seven years.  His last written communication with the children had been in January, 2007.  It would appear that he provided little to no financial support since their birth.  And aside from the first two visits, Mother did not try to make the children aware of the identity of their Father.

What made this adoption unusual was the fact that for the second time in recent Pennsylvania history, the proposed adopting parent was Mother’s own father.  It appears undisputed that this gentleman had effectively provided the same kinds of parenting support that a natural Father is expected to provide.

The first part of the case was easy.  Father provided the textbook facts typical of parental abandonment such as would justify termination of his rights in an adoption.  The more difficult question was whether the children’s grandfather was an eligible adoptive parent.

In the 2-1 decision Judges Donohue and Stabile answered in the negative. They held that the purpose behind the statute remains “to foster a new parent-child relationship.” Absent such a relationship, the purpose is likely to provide disagreeable parents with a “new….dangerous, tactic” to employ in the world of child custody litigation; cross petitions to terminate. Accordingly, they reversed the Lycoming County ruling terminating Father’s parental rights.

The pinion properly observes that grandfather is functioning in many ways as a substitute parent. But the greater challenge here is that in a world where families are evolving as a matter of fact, if not necessarily as a matter of law, what does it take to qualify for the appellation “parent” besides biology or residence while married to a woman who has become pregnant?

We are commonly asked by clients:  “If my spouse has had no contact nor provided support for a period of six months or more, can’t I terminate his/her parental rights?” Under the Adoption law, that is true but most people miss the fact that the termination is part of an adoption that offers the child a substitute parent. If you have no player to sub for the parent who is not playing, you don’t have a basis to terminate parental rights.  And per this ruling (to which there was a length dissent) granddad is deemed an “ineligible receiver.”

 

 

WHOSE KID ARE YOU ANYWAY; DEDUCTIONS/HEADS OF HOUSEHOLD/DAY CARE & CHILD CREDITS

Posted in Alimony, Divorce, Practice Issues

Yes, it is tax time once again and the struggles over who got Christmas morning in December now give way to “who gets the deductions and credits” associated with the minor child.  Here is the primer which is offered subject to the advice of income tax preparers.

In ancient times, which is to say, before 1984, the Internal Revenue Service used a support test to decide who got the deduction for a child.  But that is not the archaic view and we today assign the deduction to the parent who has custody more than half the time, no matter who pays what support.  If time is equally allocated the deduction goes to the parent with the higher adjusted gross income.  That may not seem fair but it is the law.  Many parents like to fight over whether mom or dad really had more than 50% but on that subject, chances are the IRS is going to say: “Send us the custody order; we don’t care what really happened.”

So, you couldn’t take living with Mr. or Mrs. Always Right anymore and you packed up the truck and move back with your parents on July 1, 2014.  What is your filing status?  The answer appears to be found in the Tax Code at Section 7703(b). Spouses “legally separated” under a decree of “separated maintenance” are not considered married for tax purposes.  Wofford, 515-2d T.M. Divorce and Separation, p A-70.  Unfortunately, Pennsylvania does not really define “legal separation” in the sense that it issues some decree of separation.  And it appears that a garden variety order of spousal support or alimony pendente lite or a separation agreement does not meet the test.

There is something called the abandoned spouse test.  If a taxpayer files a separate return and maintains a separate home where a child resides for more than half the year such that the child can be claimed as a dependent and that taxpayer provides more than half of the cost of maintaining the household occupied by that child, that taxpayer can claim to be unmarried. Bear in mind that the spouse cannot have been a resident of that taxpayer’s independent household during the last six months of the year. Costs of maintaining the household include rent, mortgage, taxes, utilities, insurance, maintenance and repairs and food consumed in the household.  These abandoned spouses qualify as heads of household, even though they may have been the spouse who departed.

There is a tax credit for care expenses required in order for the taxpayer to work.  The Dependent Care credit applies where the expense is to care for a child not older than 12 or a spouse or dependent who is physically or mentally unable to care for himself.  In order to claim the credit the person who needs the care must live principally with the taxpayer claiming the credit.  The credit starts out at 35% of the cost of the care but is reduced by 1% for each dollar of adjusted gross income over $15,000 per annum.  The phase out does not go below 20%.  Meanwhile the maximum credit is $3,000 per individual or $6,000 if filing jointly.

In addition to Dependent Care credits there is the Child Tax Credit.  This ties to who has the dependency exemption.  Bear in mind, the law presumes it goes to the parent having primary custody but the exemption can be assigned to the parent having less than 51% custody.  The credit is $1,000 per qualifying child.  The child must be 16 or younger and must have his/her principal abode with the person claiming the credit.  It phases out at $110,000 for joint filer, $75,000 for single and $55,000 for those filing married/separate.

THE PERIL OF THE OFFICE SERVER

Posted in Divorce, Practice Issues

We learned this week that former Secretary of State Hillary Clinton may have used personal email accounts to transact State Department business.  Chances are you may have read the article and quickly turned back to your office computer to confirm your Saturday night dinner plans or to email your attorney about filing a joint tax return for 2014.

Perhaps your electronic musings don’t have the importance of communications from the Secretary of State, but you should know that the law is clear.  You are entitled to no expectation of privacy if you use an office computer to carry your personal mail.  Zero.  Now some offices do not retain emails that have been sent/received using private accounts such as msn, Comcast or AOL.  But that appears to be a function of how the server works rather than office policy.

Chances are, your employer really doesn’t care if you plan your next vacation on the office computer.  But, there are folks out there who do want to know these things.  People like a former or estranged spouse.  If he or she should decide to subpoena your email account either at the office or otherwise, there is a reasonable chance that the information will be published.  Under Pennsylvania law, if the material is sought pre-trial you will get notice of the request and a chance to object.  But if the information is subpoenaed for trial, you may be learning about this stuff in the courtroom.

Another thing.  Clients commonly email us from office servers (i.e. brendak@bigcompany.com) with information they probably intend to be confidential.  If you are using your office email address, it probably has no protection from discovery in your family law case. On the other hand if sent or received on a personal account, you have a strong basis to contend that this was as private as a telephone conversation and therefore protected from discovery.

So be aware of what account you are using when you email. Don’t permit Ms. Clinton’s problem to become yours.

A TRANSCRIPT DOES NOT A CUSTODY ORDER MAKE; R.L.P. v. R.F.M, 2015 Pa. Super. 29 (2/11/15)

Posted in Custody, Practice Issues

Superior Court appeals relating to child custody are supposed to be “fast tracked” in recognition of the fact that in the life of a child, a year is a long time.  But, a land speed record was attained on February 11 when the Superior Court affirmed a Montgomery County Common Pleas order entered less than four months earlier.  The ruling by Judges Panella and Olson with Senior Judge Fitzgerald offers some more insight into what appellate courts are asking trial courts accomplish when conducting trials in custody cases.

The key ruling of the case is procedural.  The trial was conducted in April, 2014. The judge ordered the parties to return the following day for the Court’s ruling.  The Court spoke at length (44 pages) analyzing the factors under the custody statute and then concluding with an oral Order based on that analysis.  The judge directed his ruling to be transcribed so that the Order portion of the transcript would function as the final order in the case.  When the child’s mother appealed the Court’s ruling the Trial Court held that its oral Order was not appealable since it was not recorded on the docket.  This created an issue in its own right because Pa. R.C.P. 1915.10(a)-(b) says, in part, that “The Trial Court shall state the reasons for its decision either on the record in open court, in a written opinion or in the order.”

The rule is ambiguous and the Superior Court clearly saw the problem. The “ruling” is 46 pages and at least 27 are identified as part of the order.  It includes exchanges with counsel where clarification is sought, including a colloquy directed to what nights Father will have if he can work his schedule out.  At one point in the transcript the trial judge candidly admits that his own order is somewhat confusing.  As the Superior Court recites, much of this colloquy is aspirational and far from definitive.  The three judge panel held that a case is not concluded until a written order is prepared and placed on the docket.  Analysis of the custody factors may invite a judicial soliloquy, but the Order itself needs to be quite clear as to who has what responsibilities and when.  To the point, there must be an “Order” docketed in contrast to a direction to make a transcript an order.  Parenthetically the Court notes that the sixteen factor analysis must be completed and, in some form, articulated before the appeal period lapses.  See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) app. den. 70 A. 3d 808 (Pa. 2013).

The ruling by Judge Jack Panella with Judge Fitzgerald approving is noteworthy.   A fundamental premise of appellate law is that an Order is not an Order until it is filed on the docket whether entered in open court on a transcript or in a written form by the judge.  Absent a bright line test, an order would be “entered” not based upon a judge’s signature but a court reporter’s filing of the transcript.   Litigators know that depending upon county and circumstances, a transcript may not see the docket in the Prothonotary’s office for weeks or months following a proceeding.   Judges are clear that when they send an Order to be docketed, parties and or counsel need to be notified.  The Court reporter is not under that same duty which can cause precious appeal periods to be abbreviated or lost.

While the Appellant/Mother’s position was sustained procedurally in the explicit ruling that custody “orders” need to be drafted by Judges and not uttered to court reporters, her case fell apart quickly after that.  Mother raised eleven issues on appeal.  However, with respect to eight of her issues, the Superior Court found that the brief did not develop these issues except to conclude that the Trial Court ignored the testimony and reached the wrong result.  Quoting from  Lackner v. Glosser¸ the panel states: [A]rguments …where the party has failed to cite any authority in support of a contention…” are waived. 892 A.2d 21,29-30 (Pa. Super. 2006).  See also Chapman-Rolle v. Rolle,  893 A.2d 770, 774 (Pa. Super, 2006).

Two smaller points merit consideration.  In this case, some custody was awarded to a non-party step-mother.  Mother objected but the trial court noted that during this time, neither parent was otherwise available to provide care.  The appellate court buttressed this by stating that the step mother was in loco parentis based upon 23 Pa. C.S. 5324.  Mother made an issue of step-mother’s ingestion of anti-anxiety medications.  But the Superior Court found that the issue of how this affected the child was not developed. Similarly, Mother complained that the child was not interviewed. The Trial Court responded that it assumed that had either parent thought the views of the seven year old merited consideration, they would have offered the child’s testimony.  The panel concludes that it was not the duty of the Court to insist on an interview of a seven year old.  Lastly, the court dealt with the age old bane of all trial lawyers and judges; Appellant said the Court failed to consider the evidence the Mother forgot to bring to the trial.  You can guess how that turned out.

The substantive lessons are worthy of note.  It appears a non-party can have partial custody without becoming a party.  This is not earth shattering because otherwise every day care provider in America would be made a party.  Second, bring your evidence to trial if you expect it to be considered. Don’t assume the Court will take it upon itself to interview a child, although this is a topic that seems to have authority going both ways (Court needs to make record versus parties have responsibility to make the record).  And perhaps most importantly, a brief needs to cite cases or at least segments of the record where the Appellant believes error has occurred. Without one if not both of those legs, there is no appeal to stand on.

 

Protecting Health Information in the Context of Divorce Proceedings and Domestic Relations

Posted in Divorce

My colleagues Michael Kline and Elizabeth Litten recently co-wrote a series of blog posts for the firm’s HIPAA, HITECH and HIT blog containing valuable information for individuals either undergoing divorce proceedings or navigating other domestic relations issues.

In their series, Michael and Elizabeth explore complex issues arising from the November 2014 ruling by the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, P.C. The case has significant implications for individual health information (“IHI”) privacy in the context of domestic relations – both in the divorce or legal separation context and even in a less confrontational domestic environment.  While settlement agreements and divorce decrees often address healthcare and health insurance issues, especially where there are custodial children involved, addressing IHI issues is much less common. Michael and Elizabeth also discuss practical tips for individuals dealing with situations involving their domestic relationships.

I invite you to read all three parts of their series. Here are Part I, Part II and Part III.

THE FORGOTTEN TAX DEDUCTIONS

Posted in Alimony, Divorce, Equitable Distribution, Practice Issues

The general rule is that personal expenses are almost never deductible by taxpayers on Schedule “A” (Itemized Deductions) of their personal returns.  But all rules have exceptions and almost everyone is familiar with the deductions available for medical and dental expenses.  These are great deductions but with this hitch.  You only get to deduct the amount that exceeds 7.5% of Adjusted Gross Income.  Thus, it takes some pretty catastrophic medical expenses to get past the threshold.

But there are two lesser known deductions that merit some attention.  Under Section 212(1) of the Internal Revenue Code, a taxpayer may deduct expenses directly attributable to the production or collection of income that is taxable.  Spousal support and alimony is taxable income and both the Tax Court and the Internal Revenue Service agree that counsel fees attributable to the determination and collection of spousal support and alimony are proper deductions under Section 212.  This includes proceedings to collect arrearages (overdue amounts) and to increase alimony payments.  The deductions apply only to the payee.  The payor does not qualify for a similar deduction in defending these claims.

The fees must be reasonable for the goal sought.  Thus a $10,000 deduction to secure a $9,000 increase may be subject to challenge.  The deductions for legal fees are also limited to those greater than 2% of adjusted gross income.  Thus if an otherwise unemployed spouse incurred $10,000 in fees to secure an award of $3,000 a month in alimony, her adjusted gross income of $36,000 per year means that the first $720 (2%) of counsel fees are not deductible.  The deduction is taken on Schedule “A” under “Job Expenses and Certain Miscellaneous Deductions” (lines 21-27 for 2014).

The second and more nebulous area where deductions may be taken is for “Tax Advice.”  Section 212 (2) of the Internal Revenue Code allows deductions for “the management, conservation or maintenance of property held for the production of income.”  This is a far trickier deduction as there are no Treasury Department regulations directly addressing it.  The regulations under Section 212(1) inform us that investment management fees and custodian fees associated with investments are deductible.  The same costs for a personal residence are not. Expenses of estate litigation are afforded deductibility even though not directly related to production of income.  Expenses incurred in asserting rights to property are non-deductible.  But if the property produces income and the claim is related to collection of a portion of it, that “income” portion is deductible.  Expenses associated with preparing tax returns are deductible but again the deduction is for expenses beyond 2% of Adjusted Gross Income.  The general view (not found in the regulations) is that “tax advice” secured for purposes of managing one’s investments is deductible and many divorce practitioners sometimes freely “allocate” a substantial portion of their invoice to “tax advice” to help a client out.  But, this is a slippery slope for both the adviser and the tax payer because unlike the alimony deduction, there is no real means to measure what is reasonable and what is not and to a large degree, the assets being allocated in the divorce are not income producing.

PROPOSED NEW LAW CLOSES CUSTODY LOOPHOLE FOR CHILDREN CONCEIVED BY RAPE

Posted in Child Abuse, Custody

Pennsylvania’s child custody code requires the submission of a criminal record and abuse history affidavit which is designed to identify whether a party to a custody action or a member of their household has been accused or convicted of a criminal offense. The crimes are almost all violent crimes or crimes of a sexual nature such as rape, luring, exploitation and other offenses. Obviously, the existence of these crimes in a parent’s background can have a significant effect on their custodial situation.

A loophole, however, existed which will hopefully be put to an end by a bill introduced in the Pennsylvania state house and senate designed to prevent a rapist from ever seeking custody of the child conceived from a rape. While it may seem inconceivable that a rapist could ever obtain custody of a child, the fact remains that under the black letter of the law, the rapist would have both a support obligation and standing to seek custody of the child they fathered.

The affect such litigation would have on the victim must be devastating and no woman should have to endure confronting their rapists in family court, let alone work out custodial exchange times. So while the child custody code may be able to use the criminal record affidavit to help justify precluding the rapist from having custody, nothing presently exists which precludes him from bringing the action and dragging his victim to court.

The Rape Survivor Child Custody and Support Act is being introduced by State Senator Randy Vulakovich (R-Allegheny) and Representative Joe Hackett (R-Delaware).  The new law would allow for the termination of the rapists parental rights, but preserve the obligation to pay support. Under the current law, the only way to sever a rapist’s parental rights would be through the adoption of the child. Doing so, however, would also alleviate any support obligation by the rapist.

As quoted by Kaye Burnet of Pittsburgh’s National Public Radio, Kristin Houser of Pennsylvania Coalition Against Rape admits that the number of women effected by this law may be small, but it is nevertheless a worthwhile and necessary piece of legislation: “[this] isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania, but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

AN HOUR ON THE TEENAGE BRAIN

Posted in Custody, Divorce, Practice Issues

The January 28 edition of Terry Gross’ Fresh Air distributed by National Public Radio featured an interview with the chair of the University of Pennsylvania Neurology Department, Frances Jensen.  The subject was a relatively in depth discussion of the teenage brain. At one level a lot of this is news that has been available. The front of the brain, where judgment is processed, is a part that does not really fully develop until an adult enters his or her early 20s. But Jensen’s interview reveals more than the sound bites that we have become used to accepting as substantive information. I listened to the interview while driving so that I cannot profess to have absorbed this accurately but here were some of the information I was able to absorb.

High levels of stress inflicted on teenagers can contribute to depression that can afflict them throughout adulthood.

High rates of teenage suicide correlate to the fact that teenagers can’t really evaluate what suicide means.

The marijuana of today is far more effective than that of olden times and teenage brain receptors for this substance physically absorb more of its most dangerous components than the brains of fully formed adults. In other words, the stuff is more dangerous and the teenager is more vulnerable.  Kids who smoke these drugs on weekends have cognitive impairment that goes on for days after the “smoke” was ingested.

In addition to the fact that they have not formed the ability to process risk in the same way as a fully matured adult, teenagers can often lack the brain processing power to experience and express empathy for another’s loss or sadness. So that’s why your kid seemed ambivalent about your auto accident or the death of grandma.

The interview with Dr. Jensen also revealed some things about us. Yes, we are struggling to keep up in a world where technology can now carpet bomb our brains with information. The studies she has examined show that our ability to juggle multiple tasks apexes in our mid to late 30s. The editor of this blog is in his late 30s and as a former editor I am resigned to employing old age and treachery to overcome his youth and skill.

The interview is well worth the time if you have a child in the nightmare years. It might be well worthwhile to listen to with that child. As most of us know, teenagers think they know everything anyway so perhaps even if they don’t credit their parents, they might give some deference to a professor of neurology.