In most cases, there isn’t much to write on the subject of legal custody. In Pennsylvania, it is the right to make decisions affecting the child’s welfare; in contrast to physical custody which is where kids spend their time. It rarely comes up except when couples fight over school placements or foreign travel to “unsafe” places. Under a long-standing Pennsylvania Supreme Court decision, Zummo v. Zummo, courts stay out  of questions concerning religious worship unless the worship involves venomous snakes or other scary things.

But, things are changing. Beginning in 2000 scientific literature began to question the effects of concussions on the human brain. Five years later a physician performed an autopsy of the brain of former Pittsburgh center Mike Webster and asserted that the contact he experienced caused his brain to atrophy at an alarming rate.

In November 2015, 60 Minutes presented its analysis of the magnitude of the problem. This was a kind of watershed moment because parents began appearing in custody courts questioning whether sports with a propensity to cause injury were in the children’s’ best interests. This presented a true dilemma. In almost all instances, the children want to play. Football is iconic. How could the courts rule against children and football? To do so was un-American.

A new page has turned. This week the Journal of the American Medical Association published a study of more than 200 brains belonging to deceased football players. These included players whose careers ended in high school and college. The results were fairly stunning. 110 of 111 former NFL players were found to have evidence of Chronic Traumatic Encephalopathy (CTE). 90% of those who played football in college were also found to have CTE. And, even 21% of students who played only in high school were found to have been damaged.

This follows a 2011 study by the Center for Disease Control that elementary and high school football players had a 60% increased risk of suffering a traumatic brain injury.

The researchers in the current study note that their sample consisted of people who were both deceased and for whom there was evidence that playing high contact sports had caused some form of brain injury. So one cannot reasonably assert that 21% of high school football players will suffer CTE.

Nevertheless, that is little consolation for parents. Especially when one considers the actual amount of physical “play” in these modern sports. Data on this subject comes from professional sports and may not precisely correlate to what goes on at the local high school but if you are perceiving sports for the quality of the physical experience, here is what we can report.

Actual time of play          

Baseball               17 minutes

Football               11 minutes

Soccer                  57 minutes

Basketball            48 minutes

Hockey               60 minutes

Some judicial officers have responded that this is not a legal custody question. I cannot fault that reasoning but the Boston University study published this week may tip the ball in another direction.

 

If you have been reading the news lately, we have seen lots of electronic ink spilled over entitlement programs, especially Medicaid and its role in health care reform. Meanwhile, the report of the Trustees of the Social Security Fund issued a grim report earlier this month about the viability of the program upon which almost every American relies as an important piece of retirement income.

The short-term news is good. The Trustees see surpluses in the accounts (income exceeding benefit payments) for the next five years. But then the account starts to drain as benefit payments will exceed collections. The speed of the losses is such that by 2034 the current assets of $2.85 trillion will be exhausted unless revenue is increased.

There are two factors at work here. When the program began in 1935 a retiree who reached the age of 65 was expected to collect for 12 years. That same retiree today is expected to collect for 20 years. This was to some degree foreseeable. More troubling are the workforce statistics. In 1950 16 workers were “paying in” for each person collecting a benefit. Today, the ratio is 3.3:1 and headed toward 2:1 by the 2034 day of reckoning. 2034 sounds like a long way off but ask yourself how old you will be in 2034 and recognize as well that they can’t just let the system run to “zero” and announce to the folks now paying in: “Sorry, game over.”

As real wages are stagnant and the labor force is relatively static, the ability to balance the account with tax increases is limited. What can be done to help is to keep increasing the maximum contribution profile. That was done in 2017 as the max out for contributions rose from $117,000 to $127,000.

But, just as we have written previously about how we may someday see cuts in defined benefit retirement plans (the ones that pay monthly at retirement), future retirees may be prudent to ask if benefits will be cut or means tested, as well. These are not pleasant subjects to consider when planning retirement and especially planning a retirement after dividing the pie in divorce. Yet, they do need to be considered.

 

We last wrote about Bitcoin in late March, 2014. The principal concern we expressed at that time was that these cryptocurrencies might form a refuge from financial disclosure in the typical divorce setting. The specifics of how these assets work is in the earlier article and available on line as part of our archive (search: bitcoin). The one thing that had to discourage this medium of investment was its volatility. People who buy a currency tend to like it to have a stable price. And in 2014 bitcoin was offering a wild ride. When first offered Bitcoins traded for pennies. But in late 2013 they rose quickly to over $1000 per unit, then plummeted to just over $400 in April 2014. From then until late Fall of last year the “coin” traded between $200 and $600. But then off to the races it went once again. Today, the once lowly bitcoin is trading for about $2600 each. Great news for those who bought at $200 but again, most people are seeking stability and not volatility in currency holdings.

Enter a new crypto with the name Ethereum, launched by a college drop-out in mid-2015. The aptly dubbed “ether” has gained adherents much more quickly than its competitor. The coin was a bit more stable trading until February of this year at under $15. But, since then, it has also become highly sought, driving prices from $20 to $380 in just a couple months. In the past few months, the New York Times reports that 100 companies have signed on with the Enterprise Ethereum Alliance including several Fortune 100 companies.

So, another form of asset for lawyers to monitor, which remains highly volatile but today, at least, is highly sought after.

While Alex Jones was the most recent high-profile example of a controversial public persona creating very personal and private problems, he is certainly not alone. Similar in theme, but not in execution is the case of the Michael and Heather Martin who are described as “YouTube stars” and post to a channel with over 760,000 subscribers.

Their shtick is to torment their five children (three together; two are Michael’s kids from another relationship) by, “verbally [berating them], frequently to the point of tears, while performing stunts like appearing to destroy an Xbox video game system and accusing the children of making messes they had not made.” However, one of the aspects of fame is that when the number of people watching you increases, so to does the likelihood that someone may not share your idea of “fun” and, instead, question whether you are actually physically and emotionally abusing your children.  Such is the situation the Martins find themselves.

Recently, the Martins lost custody of Michael’s oldest two children after their biological mother petitioned in Fredrick County, Maryland for an emergency order for custody. Undoubtedly, the apparently 300 plus videos (since removed) they posted to their channel will be used in some form or fashion in a future custody case(s).

Not unlike the Alex Jones situation, the Martins refer to themselves as being “characters,” the videos are entertainment and scripted, and that the children were often in on the pranks and interested in how many hits the videos receive. Maybe the entire family fell into the wormhole of internet fame and the kids equated the validation of a popular video as the quid pro quo for being emotionally manipulated, screamed at, and exposed to violent situations.

Regardless of the motivations, it is indisputable that the videos are valuable evidence. They either depict physical and emotionally abuse by the parents, or they record a pair of amateur entertainers whose actors (their children) perform under unsafe working conditions and seemingly without the benefit of knowing what is real and what is “part of the show.”

The parents admit in their apology video to being seduced by the fame and upping the shock value for the sake of more attention and, presumably, financial benefit. They certainly imply that the success of the stunts lead to significant financial gain and their hiring of a reputable family law attorney and crisis management public relations firm certainly seems to corroborate that.

The Martins said that having “stepped away” from their “characters,” they now understand the criticism directed at them and that they made some bad decisions and let things get out of control. People lose their kids over one or two bad decisions. Imagine if someone publicly displayed hundreds of such examples.

This is the reality of today’s social media and non-traditional entertainment platforms. Essentially, anyone can produce and disseminate media on multiple platforms instead of the old system of television, radio, and movies. The line between actor or character and who you are in “real life” gets blurred. And as the Martin and Jones cases demonstrate, the more “authentic” you try to be for entertainment purposes, the more difficult it can be to separate yourself from the actions of your “character.”

We live in an age of instant information where there is constant temptation to share what one is doing and thinking. We are used to sharing our experiences and thoughts freely. The temptation becomes even greater when we are in times of stress. And, while this is a universal tendency that has always been prevalent, today we have a new means of making our thoughts known; through electronic writing.

A recent case outside the domestic relations realm informs us of the perils of this form of indulgence. The case in question involves a medical practice group that over a short period of time split into warring factions. The practice group encompassed different medical specialties and operated an acute care hospital in Greensburg, PA.

In 2010, rumors propagated that two physicians in the cardiology practice were performing surgical procedures which were not medically required or sound. The Chief Executive of the practice engaged an independent peer review group to evaluate these rumors. The preliminary report indicated that there were procedures performed that were not medically necessary.

Upon learning that their privileges were about to be suspended the two cardiologists resigned. The practice group then hired a second peer review organization to conduct a more complete study. Armed with a second report confirming that the cardiologists had performed unnecessary angioplasty, the physician group publicly announced its conclusion that there was wrongful conduct of the cardiologists.

The cardiologists subject to the report filed suit, alleging the reports to be false and the product of an effort by management to squeeze them out after the physicians had refused a buy out of their practice interests. The claims were cast as intentional interference in their relationships with their patients and defamation.

The practice group consulted with an attorney before deciding to publicly announce that the physicians had performed unnecessary surgery. The attorney shared her opinions on this subject with general counsel for the practice group. The practice group also hired a public relations firm to manage inquiries from the press and patients. General Counsel thought it provident to share the attorney’s opinion letter advising him about publicity with the public relations firm. This legal memo from attorney to client practice group was freely circulated within the public relations firm.

In 2013, the exiled physicians served the practice group they had sued with a request for “documents revealing any information related to your thoughts or plan to disclose to the media the conclusions of the independent peer evaluators.” The practice group asserted that this was an improper request for attorney-client communications. The physicians then scheduled the deposition of and subpoenaed the public relations executive in charge to bring any documents related to the public announcement made by the practice group about the physicians who were accused of improper practice.

No protective order was sought and the public relations executive was deposed. The deposition revealed that public disclosure had first been discarded as an option, but three days later those instructions were reversed and disclosure was authorized by management. The deponent had not revealed in deposition that she had been privy to the legal opinion independent counsel had provided to the employee-general counsel. That legal opinion surfaced as part of a privilege log. This prompted a renewed request for the opinion and all related correspondence. A discovery master reviewed the material in camera and decided the documents were privileged. The plaintiff physicians appealed. The Trial Court determined that transmission of the opinion letter to the public relations firm waived the privilege. The privilege is lost when protected communications are shared with third parties unless the third party is an agent of the lawyer acting in furtherance of the representation. Restatement of Law Governing Lawyers Sec. 70 (2000). In the Trial Court’s view the public relations company was providing service to the practice group, not the attorney advising that group.

The practice group appealed this order as collateral to the proceeding under Pa.R.A.P. 313. The application of privilege and work product doctrine is a question of law for which the standard of review is plenary.

The Superior Court opinion of Judge Mary Jane Bowes starts by noting that evidentiary privileges are not favored and need to be viewed to exclude evidence where there is a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Key to this concept is that the client has not waived the privilege. Communications made in the presence of third parties or sent by the client to a third party lose their protection as privileged.

The appellate court distinguishes the facts in this case from situations where a law firm brings in experts on its own to assist in its representation of the client. If the third party is rendering advice to assist the lawyer in the representation, the communication is privileged. The third party’s access to privileged communications must be necessary or useful to the lawyer’s purpose. There was no link in this case between the opinion provided by counsel and the service that the public relations firm was engaged to provide. The deposition of the general counsel made clear that the public relations firm was not being consulted about whether to disclose the physician names or there alleged conduct.

As for claims of work product protection under Pa.R.C.P. 4003.3, the court notes that the purpose is to shield the mental processes of the attorneys so that they can prepare the case without fear that their theories of the litigation will be subject to discovery. But this rule is also subject to waiver. The Appeals Court devotes much attention to the Penn State University investigation that resulted in Bagwell v. Pennsylvania Dep’t. of Education, 103 A.3d 409 (Pa. Cmnwlth 2014). Bagwell had sought information provided to the state while he was affiliated with Penn State’s Board of Trustees. But the Bagwell court found that there had been no disclosure to a third party where the facts in this appeal show that the disclosure had been made for purposes not directly related to litigation or prospective litigation.

The takeaway is that what you give to and get from your attorney needs to remain confidential. Sharing that information with others creates the risk that the protection of that information may be waived. In this case a more thoughtful sequencing of who retained the public relations firm and when they were engaged (e.g., the independent attorney did the hiring) may have produced a different result.

Twitter, Facebook and other forms of instant messaging certainly do allow all of us to try to control the message or at least be first to relate it. But these methods have no legal protection. If you share the information you gave your lawyer or what the lawyer communicated to you, both the attorney client privilege and the work product doctrine will be jeopardized. If the matter you face merits engagement of counsel, counsel needs to be an integral part of any decisions about how the world learns your “news.”

Bousamra v. Excela Health et al.   2017 Pa. Super. 66 (March 13, 2017)

Since the striking down of the Defense of Marriage Act by the United States Supreme Court, many state courts have been trying to fill in the legal vacuum created between the legality of same-sex marriage and the lack of codified law through legislation.

Though many Courts of Common Pleas have taken on issues, it really requires good appellate decisions to establish precedential authority on an issue. This can take time since it requires the confluence of good facts applied to the right law (or lack thereof) to bring an issue in dispute and litigants prepared to take it to the appellate level. Consequently, it has taken time for cases dealing with nuanced same-sex marriage and other issues to make their way into the appellate system for determination, but with two years removed from the Obergefell case, we are starting to see these cases decided by the Superior and Supreme courts. In fact, just last December we saw the Superior Court reverse a Philadelphia County decision and establish that a civil union will be afforded the same access to the Family Courts as a marriage.

Recently, the issue of whether there can be a valid common law same-sex marriage was addressed by the Superior Court in In Re: Estate of Carter, S., Appeal of: Hunter, M. This is an issue which some county courts have addressed, but no further guidance from the appellate courts.  The Carter case involves the widower of a spouse killed in motorcycle accident.  In an action supported by the families of the couple, Michael Hunter sought exclusion from paying the 15% inheritance tax on the basis that he was Mr. Carter’s spouse and they had a valid common law marriage going back to 1997.  It should be noted that common law marriage was abolished in Pennsylvania is 2005, but common law marriages established prior to that time are valid, while same-sex marriage was not legalized in Pennsylvania until 2014.

The trial court, relying on the illegality of same-sex marriage until 2014 and abolishment of common-law marriage in 2005 held that Mr. Hunter proved neither the basis for a common-law marriage and, if he had, he was precluded from being grandfathered into common-law marriage because of the 2014 effective date of the legality of same-sex marriage.  Essentially, he barred Mr. Hunter’s claim by law and fact.

On appeal, the Superior Court found that the trial court erred and that Hunter and Carter did, in fact, establish a common law marriage. They considered the couple’s 1997 exchange of rings and words of intention to be married, as well their attempt to utilize every available legal means to protect their rights and mutually rely on each other (i.e. serving as medical and financial powers of attorney; being beneficiaries to each other’s policies; having joint financial accounts; owning property together).

More pointedly, the Superior Court held that due to judicial precedent, same-sex couples have the same right to marriage as opposite-sex couples and the court cannot rely on an invalidated provision of the Marriage Law to deny Mr. Carter’s rights through common-law marriage. In other words, once same-sex marriage was legalized in 2014, the courts cannot retroactively bar couples similarly situated as Hunter and Carter from demonstrating a common-law marriage prior to 2005. Same-sex couples should have always had the right to marriage; therefore, you cannot bar a common law marriage claim on the basis that the right was “established” in 2014.

Child custody cases turn on the court’s determination of the child’s best interests.  As defined in Pennsylvania, this means having the judge apply evidence to Pennsylvania’s sixteen (16) custody factors and render a decision.  Evidence for a trial can come in a variety of ways and, with increasing frequency, the role of social media and public statements are among them.  Periodically, a case involving a public figure forces the courts to consider when an individual’s “public persona” or public statements are germane to the underlying family law issue.

In the case of Austin, Texas based “Infowars” radio host Alex Jones, his public persona and commentary are being relied upon by his ex-wife, Kelly Jones, to justify her pursuit of sole or joint custody of their three children.  The children have resided with Mr. Jones since the couple’s 2015 divorce.  Ms. Jones cites statements Mr. Jones has made on Infowars and a variety of associated public behavior, as well as some of the associated backlash to those comments and actions to demonstrate his unfitness as a parent. Based on published news reports, Ms. Jones claims that Mr. Jones’ home, which also serves as his broadcast studio, is inherently unsafe due to the attention his public persona draws and that the statements made by Mr. Jones demonstrate mental and emotional instability which demand the removal of the children from his care.

Mr. Jones’s counsel, in response, is arguing that his “persona” is akin to being an actor. He is playing a role that caters to a particular audience.  Consequently, you cannot hold his employment against him any more than you would an actor who portrays a particularly violent or controversial character. His lawyer makes the (dated) analogy that to use Mr. Jones on-air persona as evidence towards fitness as a parent would be like assuming Jack Nicholson’s performance as the Joker. This is a troublesome analogy, however, since no one would confuse “Batman” for a documentary about a wealthy man’s obsession with bats and the clown that hates him. There is a clear delineation between the actor and the character; reality and fiction.

Contrast that to another radio performer like Howard Stern.  Unlike Stern, there does not appear to have been any “fourth walls” broken in Mr. Jones’ radio or public performances.  Throughout Stern’s career, he frequently references the dichotomy between his on-air persona and his real life. He even produced a book and movie (“Private Parts”) showing this disconnect between his two worlds. Mr. Jones, on the other hand, does not appear to have ever revealed another side of himself besides the “Alex Jones of Infowars.” In fact, his ex-wife argues that they are one-in-the-same and argues that Mr. Jones is “not a stable person” who makes threats of physical violence towards celebrities and politicians.

Aside from trying to show an instability of the mind or lifestyle, are Mr. Jones on-air statements relevant evidence in a custody trial? As the trial heads into its third day, it appears that despite his defense on the grounds of art, they likely are. Another high profile case which used public statements to the detriment of the party was the Sherri Shepherd parentage case.  Ms. Shepherd and her ex-husband had a child by egg donation and gestational carrier. Leading up to the child’s birth, Ms. Shepherd was publically vocal in her excitement and anticipation of being a mother up until she and her ex-husband separated and eventually divorced. She lost her attempt at the trial level (a decision affirmed by the Pennsylvania Supreme Court) to invalid the gestational carrier contract and be removed as the child’s legal mother. At trial in the Montgomery County Orphan’s Court, her ex-husband presented a compelling montage of Shepherd’s public statements.

Mr. Jones’ commentary is certainly protected political speech, but whether Mr. Jones has the right to that speech is a separate issue as to whether his actions and behavior – of which his public statements are a significant part – make for a stable living environment or one which serves the children’s best interests.  Ultimately, the jury will parse out the “real” Alex Jones from his in-court demeanor, direct testimony, video and audio clips.

A standard provision in most written agreements establishes that no modification of the agreement shall occur unless the parties do so in writing (and usually notarized to avoid fraud). Recently, however, I confronted the issue as to whether or not a party may make a valid oral modification of a provision of an agreement.  In other words, was the “all modifications in writing” provision of the agreement as ironclad as it appeared?

The issue stemmed from the reimbursement of expenses related to the sale of property.  Over time, the reimbursable expenses grew and became substantial enough that the party responsible for reimbursing the other balked at the figure and tried in many ways to extricate themselves from the obligation.

It is common to include modification language in agreements to ensure that ad hoc revisions by the parties do not alter or create new obligations; or to avoid the chance that oral agreements are misunderstood or reneged upon by one or both parties. Interestingly, a commercial litigation case sheds light on the weakness of these clauses. The case of Crown Coal & Coke Company v. Powhatan Mid-Vol Sales LLC, 929 F.Supp.2d 460 (W.D.Pa. 2013) addresses whether a provision prohibiting modification of an agreement unless in writing precludes any modification whatsoever. The U.S. District Court, citing a variety of state and federal cases found that even where such a prohibition exists in the agreement, the parties may revise the agreement by parol (oral) negotiation: “[the] hand that pens a writing may not gag the mouths of the assenting parties.”

Modification of an agreement by parol negotiation, however, has the significant burden of being proven by clear, precise, and convincing evidence. This is a reflection of the general rationale behind written agreements: the need to eliminate ambiguity or confusion between the parties. Here, the Crown Coal court is articulating that in order to prove the validity of revised terms of the agreement, the party seeking enforcement must show that the terms are clear, unambiguous, and the evidence convincing enough to prove to the court that both parties intended to abide by the terms. Evidence along these lines includes the actions of the parties effectuating the terms.

This case reminds us that terms of an agreement are alterable by the parties so long as they satisfy the elements of being a binding contract. However, it is always advisable to work with a lawyer to make sure the revisions are in writing since the high burden of proving a modification by parol evidence – while not impossible – is difficult.

Any term of an agreement worth adhering to is best established in writing and amended to the Agreement. In the case of a Marital Settlement Agreement, it is also advisable to take the additional step to have the amendment incorporated into the Divorce Decree.  Once a MSA is entered as an Order of Court through a Divorce Decree, it really cannot be modified except by another Order of Court.  Consequently, if a revision to the terms has been made and both parties expect the other to adhere to the terms (or want the ability to compel enforcement), the best practice is to have a written amendment signed and filed for incorporation with the Divorce Decree.  This additional step might be the difference between easily enforcing the new term(s) or having to take a circuitous route to enforcement. MSA becomes a court order once incorporated into the decree and court orders can only be modified by the court.

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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.

The leading case from last year in family law was the Supreme Court’s decision in D.P. v. G.J.P. 146 A.3d 204, holding that Pennsylvania’s grandparent custody statute offended principles of privacy and was partially if not wholly unconstitutional.

This was an odd turn, in an age when it seemed as if more and more people were eligible to claim custodial time or rights related to children. But the decision earlier this month from the Superior Court in K.W. v. S.L. & M.L. v. G.G. indicates that the matter of who has standing to assert custody rights is being further limited.

K.W. and G.G. had a child out of wedlock in August, 2015. Their relationship had ended long before and it appears that K.W. was not informed of his status as a parent to be. Rather Mother contacted Bethany Christian Services in March, 2015 regarding placing the child for adoption.

When the child was born in August, G.G. relinquished the child to Bethany who placed the child with M.L. and S.L. Knowing that it would need Father’s consent for an adoption to be consummated quickly, the agency, with Mother’s cooperation attempted to contact Father. After a couple of months of reaching out to the Father through social media, Father responded in mid-September to attend a meeting. A month later, he stated clearly that he would oppose adoption.

Father’s next step was to file a custody complaint on October 30, 2015 in Centre County naming Mother alone as defendant. He also filed a demand that Bethany indicate where his child was and that produced a temporary order from Centre County giving the adoptive parents primary custody and partial to Father. Legal custody was joint. Centre County also transferred the case to Father’s home county, Lycoming, for further proceedings.

A month later the adoptive parents, S.L. & M.L. filed a custody case in their home county, York, where the child had been present since two days after birth. At the same time they filed an appeal to the Order from Centre County transferring venue to Lycoming County. This prompted Centre County to revoke its order of transfer and move the case from Lycoming to York County.

Father filed preliminary objections to the York County case asserting that the adoptive parents lacked standing. The adoptive parents asserted that they stood in loco parentis. At roughly the same time Father filed his own case in York County. The Court entered a temporary order maintaining the status quo of the Centre County order. Meanwhile Father asked for argument on his standing objections to the adoptive parents. It was held in August, 2016. The Court held a hearing and on August 8, 2016 found that the adoptive parents did have in loco parentis standing. Father promptly appealed.

The Superior Court found that the order conferring standing was an appealable collateral order under Pa. R.A.P. 313(a) citing the Supreme Court opinion in K.C. v. L.A., 128 A.2d 3d 774 (2015). That decision held that an order denying intervention in a custody case was appealable as standing in this kind of case assume a constitutional aspect.

The published panel decision of March 6 holds that orders allowing third parties to assert custodial rights “burdens the constitutional rights” of parents. Citing the Supreme Court of the United States ruling in Troxell v. Granville, the Superior Court noted that custody litigation itself disrupts family life, language echoed in Justice Baer’s opinion in D.P. v. G.J.P. The majority finds that failure to end the litigation and afford Father his custodial rights created both a financial and human burden in terms of facing continuing litigation with non-parents. Under these principles, the appellate court confirms that it must act on the collateral order appealed.

Turning to the merits of adoptive parent standing, the court notes that this is addressed on a de novo basis as it is a threshold issue. It notes that aside from parents and grandparent’s only persons in loco parentis have standing. Under T.B. v. L.R.M., the Supreme Court held that one cannot have in loco parentis statute without parental consent. In this case, Father never provided any consent to the placement antecedent to adoption proceedings. A third party cannot place himself in loco parentis without consent of the parents. Gradwell v. Strausser, 610 A.2d 999,1003 (Pa.S. 1992). In re C.M.S. was distinguished on the basis that the natural father in that case had allowed the placement to continue for more than a year before asserting his rights. 832 A.2d 457 (Pa. Super. 2003).

Parents are presumed to be fit. Hiller v. Fausey, 904 A.2d 885. The lack of fitness has its own mechanism for adjudication but those require all the elements of due process absent in what seems to be an aborted adoption proceeding. The adoption agency is taken to task for its labile approach to finding Father and pursuing his cooperation in the months before the child was born. The adoptive parents are to be dismissed from the case and it will proceed with Mother and Father as the parties in interest.

The takeaway here is that where a natural parent moves quickly to assert parental rights, third parties are going to have to stand down unless action is taken to show that the natural parent is somehow unfit. The problem in this instance is a practical one of longstanding. Adoption agencies have a child delivered. They need to make a placement and they do. Now we have an expectant family that risks loss of a child they have long awaited. If we are serious about the constitutional rights of parents, the adoptive placement should have ended after eight weeks and not more than a year. One can understand the reticence of giving a Father who has just appeared on the scene primary custody of an infant. But, it is the only intellectually honest choice given the constitutional issue involved.

K.W. v. S.L. & M.L. v. G.G   2017 Pa. Super. 56 (March 6. 2017)

This week we see a new case from a trial court on Long Island, which held that folks who adopt an open marriage that produces children might find the custody courtroom doors open when parts of the relationship have closed.

Follow along carefully. It is a bit more “complicated” than you might expect. Dawn and Michael Marano are married in 1994. In 2001, they form an intimate relationship with a neighbor Audria Garcia. The Michael/Audria relationship (yes, the extramarital one) yields a child in 2007. It appears that back in 2007 there was a common agreement among the three partners that they would raise the child together.

You can predict what happens next. Dawn files for divorce and seeks custodial rights to the child. Michael responds she has no rights because she is not a biological parent. Meanwhile, Michael and Audria are not getting along either. The Trial Court, looking at a growing body of precedent coming from the gay community where it is fairly common for one “parent” to lack a biological nexus to the child, decided that natural mother would have primary custody. Father would have weekends and Father’s wife would have weekly dinners and some summer vacation. The Court found that the child did have a relationship with all three adult parties.

The press coverage of this decision has been extensive. New York Magazine, Glamour, Cosmopolitan, Slate. The women are content with the ruling. Father professes that he will appeal. One can only imagine the trauma to a ten-year-old child innocently caught in this maelstrom of parental conflict and swirling publicity. On the adult side there appears to have been a “contract” whether written or not to raise the child communally. But suppose Michael and Audria expelled Dawn from the compact and admitted another man or woman as a substitute? If that subsequent relationship disintegrated, does the most recent exile from the “pact” have standing to request custody time as well? Is there a limit to how many contestants a custody dispute can have? And so long as I am asking questions; is there a time when the confusion associated with this litigation can be deemed to outweigh the merits of fostering and then judicially monitoring multiple relationships surrounding the same child? This may be the rantings of a curmudgeon. But thirty years ago, the mere existence of one extramarital relationship could cost a parent dearly in terms of custodial rights. And while the current crop of rulings on who can seek an award of physical time with a child seem to portend greater expansion of parental rights, I wonder whether children will ultimately pay the price emotionally because the greater the number of constituent parents, the greater the opportunity for conflict that undermines stability in a child’s life.

Some might argue: “We can just ask the child…” That is true but 10 year olds are not very adept at evaluating conflict. Moreover, they do not like to say no to anyone offering love and affection. One of the principles deemed most important in determining whether to award joint custody is the ability to cooperate. This author suggests that there should be a heavy presumption that two parents are enough and that if there is a strong sense that a third parent can and will cooperate to promote stability only then should a door be opened to admit a third party. Dawn might well be the best parent of the three but Michael and Audria enter the custody ring with constitutional rights. Those rights were judicially recognized long before Dawn stood back while her husband and another woman conceived and gave birth to a child. Yes, there are cultures including Native American ones where children were considered the property of the village and not the parents. But American culture is not wired that way and childhood is confusing enough without having three or more contestants battling out your best interests while you sit in the back of the courtroom wondering what a person dressed in a robe will decide is best for you.

Dawn M. v. Michael M., 00109/2011, N.Y. Supreme (Suffolk County)