Pennsylvania Family Law : Pennsylvania Divorce Lawyer & Attorney : PA Family Law Blog : Fox Rothschild Law Firm : Family Law Serving Philadelphia, Pittsburgh, Bucks County, Montgomery County, Chester County

Whenever there is a deep-seated dispute concerning which parent, if either, should have primary physical custody of a child, a question commonly asked is whether the Court should have the benefit of a formal custody evaluation.  These studies, most often undertaken by psychologists, attempt to evaluate the relative parenting skills of the parents and seek to measure those skills against the perceived needs of the subject child.  The rules of civil procedure authorize courts to order such studies either by agreement or the request of one party. Technically, because these studies involve expert opinions, each party is entitled to his or her own expert.  But Courts actively discourage this not only because the evaluations are expensive (typically $5000-7500) but because experts separately hired by each parent tend to be viewed as “hired guns” for their employers.  The vast majority of such studies are jointly undertaken by neutral evaluators who is tasked to identify what custody arrangement would be in the best interests of the child involved.

The typical evaluation follows a fairly routine protocol.  Most evaluating psychologists send each parent a packet of information intended to secure a history of the individuals, their families of origin (i.e., their parents), the relationship that gave birth to the child and what has transpired since that relationship dissolved.  They will commonly ask for collateral contacts who can verify the accuracy of the information submitted.  If either parent is already involved with a mental health professional, the evaluator will typically ask permission to discuss the matter with the treating professional (e.g., psychologist, psychiatrist, counselor or social worker).  Having secured this information the next step is ordinarily a face to face interview with each parent conduct without the other parent present.  At some point in the process many psychologists want to see the dynamics of both parents together in the same room.  Some like to observe this early in the evaluation; others make it a last step before completing their reports.

Except in instances where the child is too young to effectively communicate, most evaluators want to separately interview each child involved.  They may also want to see the child interact with each of his or her parents either in the evaluators office or in the home where that the parent and child occupy.  The children are often tested using tests directly intended to help the evaluator determine which parent the child is more closely bonded with.

Parents are also commonly tested using devises like the much joked about Rorschach ink blot test and the MMPI (566 yes/no questions that seem pretty bizarre when you read them).  These tests are intended to assess whether either parent has a diagnosable mental condition.

So what comes out of all this. In the vast majority of cases, not much beyond a lengthy written report.  First, most people don’t have a diagnosable mental disorder and in many situations we read that much of the supposed aberrant behavior is attributed to a kind of “divorce syndrome.” The stress of separation and custody litigation does often cloud judgment and create reactive parenting. Second, even people who have mild disorders can still be very effective parents.  Beyond the testing, many judicial officers don’t find the reports very helpful, especially as children grow to be old enough to articulate their own views.  But despite these limitations clients and many attorneys continue to believe that these reports can “win” the case and Courts are inclined to permit evaluations to go forward often because there is hope that a custody evaluation will provide a springboard to case settlement.

• Email This
• Print
• Comments
• Trackbacks

The Wall Street Journal edition for August 22, 2009 features a fine article by John Freeman which the author describes as a “manifesto for slow communication.”  What made it all the more real was the experience of the past two days.  The most memorable moments of that period were: (1) a colleague telling me that a client’s effort to start a new business was gravely set back by an errant “reply to all email” and (2) the experience of watching a family of six sit down to a Saturday night dinner in a local restaurant whereupon half the family immediately reached for their hand held devices.

I defer to Mr. Freeman:

“The ultimate form of progress… is learning to decide what is working and what is not; and working at this pace, emailing at this frantic rate is pleasing very few of us.  It is encroaching on part of our lives that should be separate or sacred; altering our minds and our ability to know our world…”

While acknowledging that this new technology has its merit Freeman notes that for the first time since the Industrial Revolution the concept of time “away” from work has begun to steadily erode.  In our new search to remain connected he notes that we now endure flotillas of unnecessary jabbering that makes it difficult to distinguish “signal from noise”.

The new phenomenon we experience today is what I will term “drive by lawyering.”  With increasing frequency clients ask to skip coming in for a personal interview in favor of a phone call. Better yet, get an answer on the fly by email. These are indeed useful devices for both lawyers and clients but they are handled without perspective.  The goal is to put your economic house in order or to formulate a new living arrangement with your children.  This kind of goal is rarely advanced in increments of ten or twenty minute conversation let alone a five minute email exchange.

Your divorce involves your family and your money.  Take the time to do your best to get it right and give your lawyer the tools and the time to do so.

• Email This
• Print
• Comments
• Trackbacks

There are two reasons family law will always be a busy area of practice.  The reasons are that there are two subjects we do not teach in school: conflict resolution and money management.  If people could manage their money or the conflict in their lives, the divorce business would be in for a major downturn.

Practical financial advice is hard to come by.  And we say this with some authority because we have been looking for professionals who understand household finance.  Yes, there are thousands of publications out there that will tell you how to ladder certificates of deposit or dollar cost average your way into index funds.  But, how much you spend on a car or an apartment often determines whether you have any money to invest at all.

Ironically, we found some sensible and practical advice in the September, 2009 issue of Glamour Magazine.  No kidding.  Wedged in between Jessica Simpson’s views on men and three flat belly secrets we found an article by Sophia Banay supported by a woman named Galia Gichon who founded something called “Down to Earth Finance.”  The magazine is worth buying for all of the advice but the segment we particularly liked was the part discussing how to budget a $50,000 income.  Gichon breaks down expenses into four categories. She takes the budget and converts to monthly income of about $4150.  She appears to allow for income taxes although that number is not discussed.  But her breakdown is divided between:

    Fixed expenses that don’t change monthly                         $1665 a month

    Discretionary living expenses                                             $830-970 a month

    Retirement savings                                                            $417 a month minimum

    General Savings                                                                 $140-280 a month

Gichon comments that fixed expenses including rent, utilities and car payments should not consume more than 60% of your net income (gross income less income taxes).  She suggests that rent or mortgage payments should not exceed half of the fixed expense budget, although this can be a tough assignment in many urban parts of this country. But if that is where life takes you, the answer may be that you don’t drive the same car or limit your discretionary expenses.

Obviously, it is also possible to forego general savings, especially in a world where you are already saving for retirement.  The article suggests that discretionary expenses be limited to 30% of net pay.  This is where the weak tend to falter at the altar of clothing stores, restaurants and Starbucks.  Another contributor to the article, Maria Bartiromo of Closing Bell on CNBC sagely offers that you allow yourself a day before making any major discretionary purchase.  Time afford perspective and you may actually discover that television is almost as enjoyable on the 30 inch flat screen even though the 42 inch beckons.

The article also addresses the subject of debt.  In the past the standard advice is that you need to save three to six months income to cover you for the “rainy day” of illness or unemployment.  Today, consumer credit may fill in the gap, but we are finding that many people are already using their cards to fund expenses they can’t afford long before the rain day ever comes.  These are folks who simply cannot survive if a crisis emerges because they are already deep in high rate debt.

The goal is to budget but before you can intelligently budget you must first be thoroughly familiar with what you bring home and what you currently spend.  It is not a pretty task but people who want to have money when they stop working had better address the question sooner rather than later no matter what their marital status.

• Email This
• Print
• Comments
• Trackbacks

Lawyers are not financial advisers but we do lots of real estate transactions and for most divorce clients, the largest asset in the portfolio is the family home.  So in just about every matrimonial case, there is the inevitable question.  Should we hold or is it time to fold?

It’s always good to study the data.  And the news for our region for the second quarter of 2009 is relatively good.  Prudential Fox and Roach reported the first region wide increase in housing prices in two years.  The biggest increase was in the city (6.8%) while the suburban increase was less than half that (2.7%).  There had been a sharp decrease in the first quarter of the year.  We have also weathered the storm well compared to other large cities. Philadelphia prices have declined 12% from their peak while average declines in the ten largest cities was closer to 30%.

Inventories (homes listed for sale) are leveling off and there is an increase in the rate of sale of those houses in inventory.  This has meant a reduction in the number of days it takes to sell a house.

So, does that mean the end of the downturn is over.  Even the experts a Fox & Roach hasten to note: “Those expecting a near-term return of 2005’s peak prices will be sadly disappointed.”   Within the region, the worst sales markets were Camden and South Jersey (down 10-11% in the past year) while Trenton area fared best (down 0.5%).  The Philadelphia market fell 5.31%.

While the second quarter offered an uptick in the rate of sales, it still took 20% longer to sell a home in June 2009 than it did June, 2008.  The average house sold was on the market more than three months.  If no new homes were listed, the 2,500 homes on the market would still take almost a year to clear at the current rates of sale.  That number has changed very little from last June.

Homes are not just places to dwell in.  They are an investment.  And since the collapse of the dot-com bubble of 2000 Americans have invested heavily in their homes.  We have been taught and there is data to show that homes can be a good investment.  What most of us tend to ignore is the fact that value is a moving target. And in markets like Phoenix and LasVegas, where prices have declined an average of 33% in the last 12 months the picture is especially clear.

Let’s use LasVegas as an example.  Let us say that in April you owned a house in that market in which you had equity (price $300,000 –debt of $200,000) of $100,000.  A buyer approaches you and offers you $300,000.  But you bought the house for $450,000.  So you decide to wait and turn down the offer.  Between April and the end of July, the data show that you lost another 2.6% on average.  Now suppose you took the offer and took your equity of $100,000 and put it in an S&P index fund, it would have risen to $130,000.  So your decision to hold cost you $40,000 between the loss on what you had and the money you failed to make.

Home equity is an engine of potential wealth.  We are not advocating irresponsible borrowing but home equity is trapped wealth except in times when home prices are rising. And with the inventory of homes still out there, it is going to be a long time before we see prices rise.  Bear in mind also that the increases reported earlier in this piece come at a time when interest rates are at historic lows.  As interest rates rise, price increases in homes will inevitably face the headwinds of increased interest rates.  So, if you bought at the height of the market, realize that in your quest to recover your losses, you may be foregoing the opportunity make real money in other investments.

• Email This
• Print
• Comments
• Trackbacks

Significant weight is often given to parents considered to be the caretaker for a child. Once a custodial schedule is established, the parent with partial and not primary physical custody often feels that, barring dangers to the health and welfare of the child, it is impossible to reverse the situation and become the primary custodial parent. Recent case law, however, has shown that the assumption that the primary caretaker of the child will always succeed in a custody action is an incomplete view of the “primary caretaker doctrine” and that the “positive consideration” the courts give to parents under the “primary caretaker doctrine” does not always result in that parent retaining primary physical custody. The recent Superior Court case Gianvito v. Gianvito, (2009 PA Super 1008) illustrates that the primary caretaker doctrine encompasses not only the day-to-day care of the child, but also evaluates the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.

The most interesting aspect of the Gianvito, however, is that a non-custodial parent, the father, was able to obtain primary physical custody in a situation where the court readily admitted that the primary custodial mother, was a fit and loving parent. This is not a case where the negative attributes of one party bolstered the other parent’s case, instead, the Gianvito case illustrates how the court is able to make a significant custodial change, despite the absence of any evidence suggesting that the custodial parent is not a suitable or loving parent. The June 2009 opinion in Gianvito highlights the Courts’ willingness to reward a party for making the child’s interests their highest priority and for recognizing the child as being the most prominent aspect of their life.

In this case, the court recognized that Father modified his work schedule to maximize the time he had available to spend time with the child, though it increased his work commute, he and his fiance purchased a home closer to the child, he sought to take the child to medical appointments, and he participated as a parent helper for the child’s daycare class. The court recognized Mother’s skills, nevertheless, they viewed the decisions she made in her life such as where she lived, her career, and her use of daycare for the child, as being motivated by her needs and goals, rather than what was best for her child’s continued development and growth. Her motivations were not criticized by the court, but they were distinguished from Father’s motivations for making similar decisions.

Father’s decisions clearly indicated that he made the child a priority, even if it made certain aspects of his day-to-day life more inconvenient or burdensome. Mother, meanwhile, made decisions to maximize the ease with which she could pursue her personal goals and accommodate her fiancé’s living arrangements. The weight given to Father’s efforts exceeded the “positive consideration” Mother received based on her role as the primary caretaker. The quality of the time Father made for the child was considered superior to the quantity of time Mother spent with the child.

Gianvito is an example of a court’s willingness to reward parents for making their child the highest priority in their life. By including an analysis of the quality and quantity of time parents’ spend with their child in the “primary caretaker doctrine,” the Courts have clearly indicated to parents that simply providing the necessities may not be sufficient to preserve your role as the primary custodial parent. If a parent shows a willingness to shoulder difficulties and sacrifices in other areas his or her life in order to maximize the quality and quantity of time they spend with the child, then the Court may alleviate those burdens by granting the parent primary physical custody of the child

• Email This
• Print
• Comments
• Trackbacks

In recent years the numbers are so frightening, people tend to mention them only in a whisper or with the caution that “of course we are getting some scholarship money”.  But here is the data published by the College Board for 2008-2009 based upon its averages.

                                                Tuition & Fees      Room & Board

Public College                       6,585                      7,748       

assumes attendance in–state

Private                                       25,143                      8,989

So, the public school option will require just under $50,000 in after tax income while the high priced spread is going to be a little more than double at $136,528. See http://collegboard.org.

This author is embarrassed to report that his alma mater again garnered laurels as America’s most expensive private university with 2008-09 tuition of $40,437.  Housing ranges from $6-14,000 and food is another $2500-3500. This student graduated with annual costs of $4-5,000 a year in 1977.  In 2009 dollars that should yield an annual cost today of $14,500 to $18,000.  In real dollars, it means that the cost of college at this one institution is 3x the rate of inflation.  But then Washington today is a far different place than it was during the days for Ford & Carter.

• Email This
• Print
• Comments
• Trackbacks

If you are not one of those people anxiously awaiting the latest revision to the Pennsylvania support guidelines, you may be in a minority.  We have no news to report on this subject except that the recommendations of the rules committee have been sent to the Supreme Court for their review and approval.

The Pennsylvania guidelines are based on models for child costs developed by the Center for Nutrition Policy and Promotion at the US Agriculture Department.  That agency has just issued a report on its assessment of what it costs to raise a child in 21 century America.  Here are the numbers in the raw:

For families with annual household       The cost is estimated to be     Per annum

Income of:

Less than $57,000                                              159,870                                       8,882

57,000-98,000                                                      221,190                                     12,288

98,000+                                                                 366,660                                      20,370

The study, which involves monitoring expenditures of 5,000 families shows that there are economies of scale as families get larger. The average couple spends 27% on one child; 40% for two children and 47% for three. Costs tend to center on the first five years of childhood and during the consumer nightmare years of 15-17.  Kids in elementary school up through middle school are more affordable.  Curiously, this rule did not apply to folks in the lowest income bracket. Their expenses remained relatively flat throughout the child’s minority.

These numbers are averages.  They assume no support obligation after high school so college is not part of the equation.

The breakouts are also of some interest.  The study found that one-third of the cost of raising a child is spent on housing.  Food comes in at about 16% and is closely followed by transportation costs of roughly 14%.  Clothing consumes about 6% of the total cost and is overshadowed by healthcare which 7.8%.  Day care and education are lumped together and consume another 16%.  The final 8% is the dangerous “miscellaneous” category that probably includes, lessons, cell phones and itunes downloads.

For households with more than $98,000 the expenses are about the same except that education/day care jumps from 16 to 21%.

The numbers are premised upon the costs of a second child, not the first so they are tending to understate the real costs of Baby No. 1.

The report is available on line from the USDA.  It is miscellaneous publication no. 1528-2008 and was issued in July, 2009. The data are drawn from surveys completed in 2005-06 but the expenditures were then adjusted based on changes in the Consumer Price Index (CPI).

Two other details to add to the pain are worth mentioning.  The 2008 baby is estimated to cost just under $300,000 before he or she reaches high school graduation ($484,000 for the upper income bracket of $98,000+) and the urban northeastern states have costs that are almost 20% higher than the national average.

So how bad is this in a relative sense.  The USDA has been tracking these types of expenditures since 1960.  In real dollars (inflation adjusted) the child of today costs 18% more than the child of 50 years ago.  Ironically, housing has almost nothing to do with this even though the house of today is far larger than it was a half century ago. The biggest change is in child care and education growing from 2% to 16% today.  Health care is next.  It has doubled in cost over time from 4% to 8%. Transportation clothing and food have all declined as a piece of the pie with the cost of feeding a child reduced by 1/3 and clothing costs cut almost in half (11% to 6%).  But the miscellaneous costs have increased from 8% to 12% as the child of fifty years ago had to occupy himself with Lincoln logs, Barbie, bicycles and teen magazines.

• Email This
• Print
• Comments
• Trackbacks

If a lawyer actually listens to a client, some times there is a sense of disappointment that the client has not articulated, but, nonetheless, is present to behold.  I received a phone call from a client tonight.  He had spoken with a court appointed custody mediator who had explained to him how mediation works in Pennsylvania.  I could tell he was disappointed that this information was imparted not by his attorney, but the mediator.  The client’s concern was that he was walking into a process that could possibly affect his time and opportunity with his children and I was not the one to explain it.

So, let it be explained. This year marks the tenth anniversary of Court sponsored custody mediation.  Thirty years ago custody cases were fairly simple.  Mothers were awarded custody and an interested father could see his kids every other weekend from sundown on Friday to Sundown on Sunday.  But thirty years ago, a couple of things started to change.  First, Pennsylvania adopted the Equal Rights Amendment as part of our state constitution. This meant that discrimination on the basis of gender became inherently suspect and illegal as a matter of law. Second, fathers who had parented children during the 1960s and began to express sincere interests in having an ongoing relationship with them.  Not all father’s interests are sincere but, in initial interviews we have conducted with clients in the last twenty years, the trend has favored mother’s acknowledging that “he’s a good father even if he doesn’t always get it right.”

The result of fathers’ increased interest in having an ongoing relationship with their children was a huge tide of custody litigation.  And if there is one subject upon which psychologists, attorneys and judges agree it is that adversarial proceedings concerning custody are inimical to the best interests of children.  As adults we know how to fight.  And one hopes we know when to fight.  But we invest enormous energy in teaching our children NOT to fight and if we lead by example, fighting over our children is not an example to be celebrated.

Although many people (including this writer) challenge whether adversary proceedings are the best way to resolve family law matters, Court rooms are the places where most custody challenges are heard. Thus, the focus tends to be on winning instead of resolving custody matters.  And lawyers are bound by their own code of ethics to represent clients zealously although most will tell you that they abhor such zealotry in a world where children are the pawns.

So, the idea evolved to give the parties a chance to resolve their differences outside the Court room and without lawyers and judges.  Mediators are trained professionals who are assigned by the court to sponsor discussion between parents concerning management of their children in a divorce setting.  They have no power to decide anything.  Their training is directed towards fostering “conversation” between the parties and promoting resolution.  They do not represent either party.  Nor do they represent the child or the child’s best interests although they are directed by Court rule to try to get the parents to see what is in the child’s interest.  They may, with the consent of the parents, meet with the child.  They have no power to make a recommendation although they will commonly offer a menu of possible solutions that the parties may or may not choose to select.

Lawyers are not permitted to participate in mediation sessions.  What is said in mediation is confidential and therefore not admissible in Court.  Mediators therefore do not become witnesses even though what they see and hear in a mediation session may be something the Court would like to know.

Most counties are adopting these programs because they find that they are a low cost and often effective means to get parties to talk through a custody conflict.  Typically, Courts will order mediation before a formal court proceeding although some counties offer mediation after a Court appearance has failed to resolve matters.  If agreements are reached, the mediator is customarily asked to prepare a memorandum of understanding that the parties are free to discuss with their attorneys before any agreement becomes effective. Some parties will choose to engage in multiple mediation sessions rather than take the case on to hearing or conciliation where the Court ultimately will decide what is best.

Because the process is confidential, mediators do not tell the Court what occurred.  Where mediation is required by Court rule, mediators will report whether a party “attended” but no more even if the party refused to speak. The point is to get the parents to talk about what they want for their children before they go to Court.  The goal is to avoid Court but it is also to refine the issues before a Court proceeding takes place.  If a parent says he or she wants a change in custody, the point of mediation is to explore why he wants it and how it is in the child’s best interest. But, Courts also recognize that because the stakes appear so high, mediation will not often work. Sadly, it is not often in one’s interests to lay all cards on the table in mediation.  That is a judgment best made by the client in consultation with the lawyer.  It takes two to resolve custody matters and both must agree that they are not shopping for an advantage in the litigation if the mediation is to be truly successful.

So there it is.  Mediation101.

• Email This
• Print
• Comments
• Trackbacks

As one might expect family court is a pretty emotional place to be and at least once or twice a year a distressed litigant with an unhappy result is heard to utter the words found in this title.

We thought it might be of some interest to report on how appeals work and if the Supreme Court is a place where relief can be had.  The discussion necessarily starts with: what Supreme Court?  There are two of relevance here.  The Supreme Court of Pennsylvania is the Commonwealth’s highest appellate court and the oldest such court in the nation.  What most citizens do not realize is that, by and large, it is a court of discretionary appeals. This is to say that the Court decides what cases it will hear based upon orders granting allowance of such appeals.  You have to ask the court to review your case and the justices actually vote on whether to do so.  There are published appellate rules stating that the criteria used to decide when they will exercise their discretion in favor of hearing an appeal.  The most commonly invoked rule is that the appellant presents a unique question of law not previously decided and which the court believes of sufficient importance to merit review.  The second route to the state Supreme Court is to show that a ruling of the Pennsylvania Superior Court strays from existing law and is inconsistent with established precedent.

Now, what about the “nine” who inhabit that building behind the Capitol in Washington?  The United State Supreme Court is also a court of limited jurisdiction.  Ordinarily it will grant “certiorari” (also an allowance of appeal) in cases where there is a federal question, meaning a question involving laws passed by Congress and interpreted in the federal judicial system.  Each state and the District of Columbia have both federal courts and state courts.  The United States Supreme Court may also grant an appeal in matters where state courts have abridged rights which the US Supreme Court views as fundamental.  Common examples of this are found in the area of criminal law where states have adopted laws or procedures the US Supreme Court finds inimical to well established freedoms such as the right of privacy, the right to a fair trial or the right to hold property.

It is exceptionally rare for the United States Courts including the federal district courts in each state or the US Supreme Court to hear family court matters.  There is actually authority holding that family law matters are best left to the states themselves to decide.  The US Supreme Court has ruled that the rights of a parent are “fundamental” but except in circumstances involving termination of parental rights (in contrast to regulation of them) the United States Courts are to abstain from hearing matters involving family law.  This general rule has some exceptions but they are tiny.  In a word, the US Supreme Court is not going to hear an appeal of your divorce, custody or support case unless you can show that the procedure the state has established to regulate those cases is so flawed that it denies you fundamental rights like due process of law.

As for the Pennsylvania Supreme Court, it has much broader powers to decide what cases it will hear.  We recently asked the Supreme Court to review a decision of the Pennsylvania Superior Court where we believed the Superior Court had misconstrued both the state law governing support and precedent laid down by the Supreme Court in the 1990s regulating what constituted income for support purposes.  A 1984 statute had established the definition of income for purposes of support.  The Supreme Court had ruled in Humphreys v. DeRoss that income did not include gifts or loans that a party received unless a party had a plain right to the gift. Almost all gifts are given in the discretion of the donor and not a matter of “right”.

In our judgment the Superior Court had strayed from established precedent when it reversed a trial court ruling holding that money our client had received as a gift was not income for support.  We filed a request for allowance of appeal asking the Supreme Court to review the matter and, in June of this year, it not only adopted our position but instantly reversed the Superior Court and reinstated the trial court ruling.  This is uncommon because, the standard procedure is to grant the appeal and then review briefs and hear argument from both sides.  

But because there was already statutory authority defining income and Supreme Court had recently interpreted that statute, it appears to have decided that further debate of the issue was not required.

Appeals are, and have always been, a slow and expensive process.  Customarily they are heard only after all of the trial court proceedings are concluded.  One has the right to appeal any final ruling of a trial court, but that appeal is to the Pennsylvania Superior Court.  The party appealing must prepare a record copying all of the relevant pleadings and exhibits material to the ruling of the trial court and write a brief (of not more than 50 pages) summarizing how the trial court either failed to follow existing precedent or abused its discretion in ruling as it did.  Disposition of an appeal customarily takes nine months from the date the appeal is first filed to disposition by a three judge panel of the Superior Court.  Because appellate briefs must contain citation to applicable law and the transcripts and exhibits used at trial it is fairly common to take an hour to write each page of an appellate brief.  Appeals are ordinarily disposed of after oral argument by a written opinion evaluating the merit of the appeal.  The Supreme Court does this only in cases where it decides that the appeal merits consideration in the first place.

So if you are “taking this up” to a higher court, it is helpful to know where and how an appeal is processed.

• Email This
• Print
• Comments
• Trackbacks