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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

MEMO FROM EMPLOYER: TIME TO GET MARRIED

Posted in Practice Issues, Same Sex Marriage

On April 29, the United States Supreme Court heard arguments in Obergefell v. Hodges.  This case addresses the question of whether there is a constitutional right to marry that transcends the historic power of states to regulate who can marry.  If you go to the website of the U.S. Supreme Court you can read and listen to the arguments including the questions posed by the justices.  It is an interesting argument once you get passed the first few minutes where there are a series of exchanges referencing older cases touching on the constitutional decisions.

But while we wait for a decision, the ground is already starting to shift in the world of employee benefits.  In recent years, many employers began to offer health care benefits to all “couples” regardless of whether their status had the title of marriage.  It creates problems because it requires the employer to define what is a “couple”.  For that reason most companies decided to restrict this benefit to gay couples only because they were ineligible to marry.

Obviously, much has changed.  Today 37 states have adopted some form of gay marriage or civil unions.  And complaints are being registered with human resource personnel along the lines of: “How is it that Samantha can cover her same sex significant other on her health benefits but I can’t cover my girlfriend of twenty years on our plan?”

Employers offered this coverage to same sex partners as a means of showing their progressive approach toward employee needs.  But now, what started as progressive has become divisive and employers don’t like it.  So, memos are starting to hit the desks of gay employees affording them a limited period of time to either marry their same sex partner or risk seeing the non-employees coverage terminated in states where same sex marriage and unions are now recognized.  As the Wall Street Journal reported on May 13, if the Supreme Court rules that there must be recognition of gay marriage or unions in all states, employers are going to be driven to insist that marriage or civil union is a condition for any form of spousal benefit.  Some concern has been expressed that this is forcing the gay employee to come “out” by making a public declaration of his relationship and therefore, his or her sexual orientation.

Another approach, as referenced above, is for the employer to attempt to define what constitutes a couple regardless of sexual orientation or marriage.  But needless to say, that is a slippery slope and ultimately leaves open questions such as when is a “relationship” formed, when is it over and how are these events defined as a matter of law.

 

SUPPORT ARREARAGES SURVIVE THE DEATH OF THE PAYOR

Posted in Divorce, Practice Issues, Support

Recently the Superior Court considered a case in which a party died during the pendency of a support action. In the divorce case for Moser v. Ronald R. Renninger, et al., No. 1065 MDA 2014, the husband and wife were separated with the wife having filed for divorce and sought spousal support against the husband, receiving an interim support order of $394.10 per month plus arrears in an unspecified amount.

As an interim order, this matter was scheduled for an evidentiary hearing and designated complex which allowed the parties to conduct discovery (typically “simple” support cases do not permit discovery). Approximately two months after the interim order was entered, the husband died and, without having established grounds for the divorce, the divorce action and the husband’s estate filed a motion to terminate the support action and Support Order on the basis that without a divorce action, alimony pendente lite is not available to the wife.

While the wife agreed that the support obligation terminated upon the husband’s death, she argued that it is appropriate to apply a support order to the estate for the purposes of paying the accumulated arrearages. Basically, wife argues that she is a creditor to the estate.

At trial, the court found that wife could proceed with an arrearage-only spousal support case. On appeal, the estate asked the Superior Court to consider: 1) whether the failure to dismiss the support case is an error of law and an abuse of discretion; 2) that the record does not support finding that wife is entitled to receive spousal support; 3) error of law and abuse of discretion were committed in miscalculating (husband’s) income.

Though acknowledging that she was no longer eligible for APL, wife pursued her claim for a separately filed spousal support action and disputed that such action necessarily abates with husband’s death.  The Superior Court followed the reasoning of the trial court in finding that while a support order cannot be entered post-death, the interim order was valid and wife could continue her support action on the basis that a surviving spouse can collect unpaid support from the estate of the deceased spouse.

For the second issue, the estate attempts to argue that the husband had a defense to spousal support. Unlike APL which is a statutory entitlement to the dependent spouse, the payor in the spousal support case can offer defenses to the payee’s entitlement to spousal support. In this case, the estate points to trial court’s failure – in their opinion – to adequately consider a protection from abuse petition filed by husband and that wife voluntarily deserted husband.  The trial court, however, noted these events and cited that both parties filed PFA’s and both voluntarily withdrew them. Mutual allegations of abuse, the trial court reasoned, are inadequate defenses to a duty of support.  The Superior Court again sided with the trial court’s reasoning.

The final issue involves the calculation of husband’s income. The estate contends that the trial court improperly allowed evidence which was not authenticated and failed to consider the husband’s 2011 tax return. Basically, the estate objected to the introduction of PACSES records generated as part of the support conference on the basis that it is hearsay requiring authentication by the custodian of records. The support master found the information provided to be maintained by the Pennsylvania Department of Labor and reliable.

The trial court acknowledged the problem of authentication and that the record did not fall within an exception to hearsay evidence.  The Superior Court agreed with the trial court, however, they also cite the trial court’s reliance on corroborating evidence which established husband’s income and supported the records offered at the master’s hearing. So while an authentication and hearsay issued existed, it was not enough to justify remanding the case back to the trial court.

While the support case terminated, the wife remained a creditor to the estate. This case highlights a few issues, but the more important being that the death of a party without grounds having been established may not justify stopping all the actions in the case. Careful consideration must be made of what can abate and what requires the court’s review.

 

401(K) HARDSHIP WITHDRAWALS TO STABILIZE POST-DIVORCE FINANCES

Posted in Divorce, Equitable Distribution, Practice Issues, Taxes

401(k) retirement plans are commonly divided in divorces by way of a Qualified Domestic Relations Order which prevents the transfer of the funds from the plan participants account to the other spouse from being a taxable event such as it would be if they simply withdrew money from the account. If you participate in a 401(k) plan then you are probably well aware that withdrawing money before you reach retirement age subjects you to a 10% penalty on the amount of money you withdrew and you have to pay income tax on the withdrawal.

For many divorce cases, however, the use of the 401(k) funds is a necessity for one or both of the parties. Recognizing the reality that people needed access to their accumulated retirement funds for legitimate and immediate financial purposes, the IRS created a mechanism for being able to utilize your 401(k) funds without having to pay the taxes or penalty on the withdrawals. A “hardship distribution” is defined by the IRS under Reg. § 1.401(k)-1(d)(3)(i) as an immediate and heavy financial need by the employee or the employee’s spouse or dependent with the withdrawal being a sufficient amount to satisfy the need.

The need to take a “hardship distribution” is not uncommon for many people involved in a divorce. Divorces can cause financial damage to both parties, but particularly the “dependent spouse” who may not have the cash flow or immediate resources to address an urgent financial need. It can also be a tool for the “independent spouse” who transferred a significant portion of their wealth to the other spouse. The award of 401(k) assets (if in the form of an IRA, the analysis changes somewhat) may be the financial resource they need to stabilize and rebuild their financial health. While any financial advisor would advise against using tax deferred money if it all possible, circumstances dictate otherwise at times and knowing this option exists may be helpful.

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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.

ATTORNEYS’ FEES AS SANCTIONS; IT TAKES AN ATTORNEY AND A HEARING

Posted in Custody

Lowe v. Lowe 2015 Pa. Super. 35

On September 20, 2013 a Father files a Motion (sic) to Modify a Custody Order.  A hearing is scheduled that same day in Allegheny County on November 14.  Mother is pro se.  Father is represented.  The attorney for Father advised Mother that he was filing to adjourn the November hearing and would appear on October 30 to submit that request.  Father’s counsel does not appear at the October 30 preceding but simply phones the Court to tell them he was “pulling” his motion.  The Mother sat through the list that day and informed the Court at the end that she was waiting for Father’s attorney to present his motion.  As we might suspect she had taken time off to appear and Father’s attorney appears to have not advised her that he was abandoning his motion for continuance.

The trial judge was angered by this perceived act of rudeness and issued an order compelling Father to pay $500 in counsel fees to Mother within ten days.  Note:  Mother was pro se, so we start with a problem.  The problem is the Commonwealth Court’s ruling in Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 972 (2007) where that Court held that a remedy under Section 2503(7) of Title 42 for dilatory, obdurate or vexatious conduct does not include attorneys awards where attorney’s fees were not incurred.

The Superior Court next examines Pa. R.C.P. 1023.1(c).  This allows award of an “appropriate sanction” where an attorney or pro se party prosecutes or defends a petition, motion or pleading without a sound factual or legal basis.  The sanction may be imposed on parties or counsel but only after notice and opportunity to respond.  Note that the Court has the authority to undertake this proceeding on its own initiative. Pa. R.C.P. 1023.4.  But as a due process protection the Court must specify the conduct it deems offensive.  The sanctions are specified at Pa. R.C.P. 1024.  It includes striking all or that portion of the legal filing that was found spurious.  The Court may invoke a penalty payable to the Court.  And it may award legal fees directly related to the offensive conduct.

The trial court opinion offered that it had erred in terming the award “attorney’s fees”, as no attorney time had been expended by the pro se Mother.  But as the appellate panel notes, Mother made no written or oral motion for any award.  The Trial Court could have issued its own rule to show cause but the remedies at hand were sparse.  There was no pleading to strike (except perhaps the underlying motion to modify the custody).  There were no attorney’s fees incurred. So, we are left with a “penalty” payable to the Court.  And, based on the Superior Court ruling it appears they may be asking the Trial Court to explore Rule 1023.4(a) (2)(iii) and its cryptic reference to “other expenses incurred as a direct result of the violation.”

Is this an invitation for pro se Mother to present her lost wage and parking fee claims?  Not clear from the opinion but the case was remanded to permit either Mother or the Court to proceed under the direction of the rules.

The procedural history of this case underscores the problems inherent in the practice of many counties to handle matters through what is often called “business court.” Typically many counties set aside part of one day per week for all motions or petitions to be presented.  Most require that the opponent be afforded 72 hours or more of notice that the motion will be “presented”.  The basic utility of this worked in olden days because few litigants were pro se and in many counties most of the bar was either present or close by when business court was held. The hope was that by forcing an appearance, the lawyers would be rendered more “reasonable” and that many settlements would be made just outside the courtroom because the matter was about to be heard in some way.  But the alleged practice in this case highlights today’s new avalanche of pro se litigants.  Mother in this case took time off from work or may have paid for day care for the sole purpose of traveling to downtown Pittsburgh for what would likely have been a 1-3 minute “proceeding” to resolve a contested request for a continuance.  The request was never filed because Prothonotaries are typically instructed not to accept papers until a judge has entered a “rule to show cause” in the business court.  So when the opinion discusses the motion having been “pulled”, the truth is that it was never filed, a rampant problem that the appellate courts should address.  In this case, the appellate decision “reminds” Father’s attorney that a custody pleading cannot be withdrawn without leave of court or written consent of the parties.  Pa. R.C.P. 1915.3-1.  But Father’s attorney wasn’t attempting to withdraw his pleading; he was simply reneging on his representation that he was filing for a continuance.  Yes, there is some utility to be had in holding “business court.”  But, there is no “business” until a pleading, petition or motion is filed on the docket.  Ironically, the appellate court has remanded a case to the trial court to take up sanctions under Rule 1023 for a motion that was never filed.  See the opinion at footnote 3 and figure that one out.

PRE MARITAL AGREEMENTS ARE NOT ALWAYS CONSISTENT WITH CHURCH LAW

Posted in Prenuptial Agreements

We have had a recent spate of pre-marital agreement requests from folks who adhere to Roman Catholicism as their faith.  This creates a rather ticklish situation because for better or worse many American Catholics don’t pay close attention to the Vatican’s Code of Canon Law and Chapter IV’s regulation of matrimonial consent.  Needless to say, to be married within the Catholic Church requires attention to these laws as they bind Catholics throughout the world in the same way that Pennsylvania’s statutes regulate marriages in Pennsylvania.

The Canon Law of note is No. 1102.  It is quite simple and can be read on the Vatican’s website.  “A marriage subject to a condition about the future cannot be contracted validly.”  As most attorneys will confess, simplicity of language does not always connote uniformity of interpretation.  But the accepted interpretation one hears from those trained in canon law is that parties cannot marry with the blessing of the Church where they have already made agreements touching upon the possibility of separation or divorce.

We profess to have no training in canon law, but the conventional wisdom is that the parties can agree upon matters regulating their marriage but they cannot have language that contemplates an end to the marriage because marriage is a holy event intended to last indefinitely.

The typical prenuptial agreement triggers upon either separation or divorce.  Neither of those words can appear in an instrument which the Church would approve.  So what choices are available.  It would appear that some couples simply choose not to reveal the terms of their agreements to the ordinaries who marry them.  It is not the responsibility of secular attorneys to reveal their actions and obviously, others in far higher authority than secular lawyers will judge. The second is to attempt to craft agreements that try to limit rights without incorporating any conditions “about the future.”  This is itself a very slippery slope because just about every element one can contemplate in a prenuptial agreement is an attempt to regulate future conditions.  There are law firms that do have civil attorneys who also profess to specialize in Canon law and it may be worthwhile seek out that specialized assistance because clerics may want to approve of an agreement before their consent to solemnize the marriage.

None of this really affects Pennsylvania law.  Church law and secular law are completely separate.  Pennsylvania policy actually supports premarital agreements and that policy is not changed based upon the religious affiliations of the citizens who are governed by Pennsylvania law.

MUST COURTS DECIDE EVERYTHING?

Posted in Custody, Divorce

Today a news outlet called NJ.com reported a recent 37 page decision by a New Jersey trial court adjudicating the question of whether a Father had legal authority to stop the mother of his eleven year old daughter  from taking the child to a concert by the singer-songwriter Alecia Beth Moore. Ms. Moore is known primarily through her stage name “Pink.”

In case the suspense is overwhelming, indeed the 11 year old did secure judicial consent to attend her first rock concert in Newark, NJ. It appears that this decision may have come a year ago, but has now been deemed newsworthy.

The more challenging question is whether Courts ever have a right to “just say no” to every parental controversy that comes down the pike. Those familiar with the procedural laws governing child custody matters know the rules are stacked in favor of holding hearings on every controversy, no matter how small.  At this time of year, the subjects du jour are fights over summer camp and vacation schedules. Come August, children who have spent significant time with non-custodial parents will profess that they don’t want to return to the primary custodian.  And from November 1 through to December 23, courts will see the primary focus of their work become just how to balance Thanksgiving, Christmas and mid-winter recess holidays.”

Next year’s budget is still in limbo but the Pennsylvania Courts are asking for $350,000,000 and the governor is proposing about $320,000,000.  Each year, there is more and more demand for “efficiency” in the judicial system. But how can one quest for efficiency in a world where an elected official sitting as a judge must pour over the lyrics of a middle aged rock star to assess whether the minor will be corrupted by hearing those lyrics in melodic form at 100+ decibels.  Pennsylvania judges, without support staff, cost about $4,000 a week or roughly $100 an hour. Is every issue worthy of those kinds of resources? And are we making good use of legal talent and training to decide whether the transition on Christmas Day should be at noon or six o’clock. Should the mother or father who wants to relocate to another state to pursue a job opportunity or care for a dying relative have to wait in line for their day in court while judges hear these issues? Should the taxpayer be asked to underwrite the cost of having a Court evaluate whether “Pink” is too raunchy and/or too loud for an eleven year old to experience? Our world is filled with some very serious problems. We are told our government resources to address those problems are limited. Are some of these matters really problems?

Realize that courts cannot be the unsupervised monitors of their own caseloads. This invites judges to dodge questions of importance because they are either uninteresting or difficult. But if trial courts refused a case on the basis that it was not worthy of judicial consideration, there should be a right to immediate appeal with the sole question being: “Is this truly a legal case or controversy?”  Certainly appellate courts would give wide berth to trial courts to consider matters where adjudication is “needed.” But courts were not created to act as substitute parents and taxpayers should not be asked to underwrite trials devoted to assessing whether “Pink” is a worthy cultural experience or an auditory menace. If two loving parents cannot manage that decision on an agreeable basis, let them pay an arbitrator to do the right thing without burden to jurists or taxpayers.

REAL ESTATE AND DIVORCE: STOP, LOOK AND THEN LIST

Posted in Divorce

So it’s break up time and you can’t wait to “move on” in not just the emotional but the physical sense of the word.  Even though you and your spouse can’t agree on much of anything, you both agree that it is time to sell your burdensome house and find more comfortable digs of less grandeur.  This should be easy, right?  Just ring up the realtor and make the appointment to sign the listing agreement.

Before you sign that agreement, especially if you are the financially disadvantaged spouse (i.e., you make far less or control far less) GET SOMEONE TO FIND OUT WHAT YOU OWE.  There are many exceptions to the rule, but the rule is that you can’t sell a house until you can pay off the mortgages associated with it.  Oh, you can agree to sell your house for whatever the price but to actually “close” on the transaction and convey title to the willing buyers you will need to pay off the mortgages and any other liens (e.g., tax liens, judgments etc) that may have arisen while you owned the place.

To some this would seem academic but in the rush to buy every piece of real estate in America between 2000 and 2008, the consuming public signed lots of funky mortgage paper including home equity lines of credit that nestled on top of conventional mortgages.  People also refinanced their real estate many times to cover many expenses unrelated to home acquisition and ownership.  They paid auto loans, college tuitions and consumer debt.  When they come in to meet us, they often can’t recall whether or not the loan was a mortgage, what else might have secured their debt or even what the money was used for.

Most experienced realtors actually try to do a quick lien search before taking a listing to make certain the proceeds will be sufficient to pay their commission and otherwise “clear title”.  But you must either ask the realtor or ask a lawyer to make certain that you know what debt you owe for which your house is collateral.  This is not something to wait for.  First you may find that while the house will close and the debt can be paid, you will have nothing left to put down on a new house.  Second, if your willing buyer agrees to pay your price and then invests time, effort and money into getting ready to move in only to find out that you really can’t clear the title hurdle, that buyer may be looking for a lawyer to sue you for listing and selling a property you should have known you could not successfully sell.

There are ways to negotiate around some of these problems but no transaction where debt exceeds contract price is a safe transaction.  The key however is to find out first what debt really is recorded against the property and then list for sale.

 

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.”