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

Earlier this month Delaware became the eleventh state to legalize same sex marriage when they passed Marriage Equity Act in the state Senate.  Passage was fairly close with 12 voting for the Act and 9 voting against it in the Senate, while the House had earlier passed it 23 in favor to 18 against.  Leslie Spoltore has provided the synopsis of the Act on our Delaware Trial Practice Blog as well as a link to the complete Act.

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My colleague Aaron Weems has already reported that late last month the Pennsylvania Supreme Court put an end to what was a five year experiment with court appointed ombudsmen tasked to decide minor custody disputes where the need to have a prompt resolution outweighed an assessment of how a particular custody issue affected a child’s best interests.

The Order from the Supreme Court came as a surprise to the domestic relations bar. The program was not without its problems and some of those problems were substantial. But parent coordination was created as a device to address “high conflict” custody disputes where the parties were already making frequent use of the judicial system to decide matters that had more to do with their power in contrast to the interests of the children. Because it often takes months to have a dispute decided by a judge, it was thought that it was both economically and temporally more efficient to assign routine disputes to an experienced family law attorney who would have more flexibility to resolve the dispute quickly and without fanfare. Parent coordinators were never intended to decide the underlying schedule for the children or the difficult issues of private school, relocation or the like. But when the questions related to summer vacation or whether the karate tournament was “trumped” by the decennial family reunion, it was felt by many on the bench and in the bar that a prompt decision was better than the wait and the cost associated with getting a judicial official to weigh in with his or her powers.

Obviously the Supreme Court saw this differently and said as much in its order repudiating the entire system. The Court noted that custody decisions were a uniquely judicial function and that judges were the only persons empowered to make decisions of this kind. In a technical sense, the Court was absolutely correct. The law has long held that child custody decisions were too important to be delegated to people who were not appointed or elected to serve as judges. But, in so doing, the Court seems to have missed a couple of major considerations. Those considerations merit some attention as does as discussion of what was wrong with parental coordination as it evolved over time. In the end, this writer submits that parent coordination needed reform but it abolition has worked to the detriment to all participants in the judicial process. The bench, the bar, parents and, yes, even the children, will ultimately lament the death of this quasi judicial system of dispute resolution.

The first and most important point is that what comes before courts in the guise of a custody dispute has evolved over time. Forty years ago custody law was pretty easy to predict. When a couple separated mother was awarded primary custody and father was assigned “visitation” not to exceed one day a week or every other weekend. Folks who came to court with lesser decisions such as whether their son should play football after his second concussion or whether private school was necessary were often told that the Court was not going to address “minutiae” and to “go out in the hallway and settle this.” In some Pennsylvania counties this is still the case. But times have changed and today Courts have seen an explosion in special relief petitions. Some of these disputes have been ever present. Each year parents seem to think that Thanksgiving and Christmas will magically be resolved, only to find that it is not. This week one of our lawyers will begin a custody trial to decide what should be done with the “odd” week of Summer, 2013 where the parties otherwise seem to agree to divide Summer equally. These disputes have much to do with poor planning and little to do with “best interests.”

The new breed of disputes includes whether children can be removed from school to vacation in Florida or the Caribbean. Parents now seem to be prepared to fight over what activities their children should or should not be involved in. They fight over what camps their children should attend. And last but no least are the weighty questions of whether the show rabbit contest or middle school play should prevent a child from attending his or her mother’s most recent wedding.

Respectfully, these decisions have nothing to do with best interests and everything to do with “power and authority.” If a child has been working with one parent to build a soap box vehicle only to learn that the derby is the same day the child’s mother is getting remarried, we have a conundrum but not one that affects the best interests or welfare of the child. Someone needs to resolve this dispute. That can’t be contested. But do we really require that a judge lay aside his or her other business to decide this. Is that an efficient use of judicial time in a world where more and more citizens are coming to court without lawyers. How many hours of testimony should be allocated to hearing Father testify about how the soap box car was built? Should there be a limit on cross examination? How many questions must mother endure concerning her ignorance or cavalier indifference to the needs of her son to attend the derby? I was recently slated to speak on a panel with an appellate judge. At the last moment he mailed all of his fellow panel members to advised that the seminar was the same weekend as his child’s bar mitzvah. Of course he has to cancel. But had he been a mere mortal who scheduled his son’s bar mitzvah on the same weekend as the playoff game, or the soap box derby or the rabbit competition, he might have had bigger problems than he faced with his fellow seminarians. He might have found himself sitting outside a courtroom while an elected official found time to weigh the benefits of bar mitzvah versus playoff game in which his son was slated to pitch.

These decisions cannot be dismissed as frivolous but as we noted, they have little to nothing to do with protecting children or assaying what is in their interests. They are the perfect place for a neutral outsider who has some experience with the family to call “ball or strike.” These parent coordinators do charge for their time but their cost is a fraction of what litigants spend to have pleadings prepared so that their attorneys can spend hours in the hallway of the courthouse waiting for a judge to break from his daily fare of litigation to take up the emergency baseball versus bar mitzvah dispute. Where a parent coordinator is familiar with the dynamics of the family, he or she can also bring to bear the experience of the family in making the decision. Perhaps Father has “won” the last three demands for intervention and it is time for Mother to get a “win” in her column. Judges are not going to bring that experience to the table unless this is one of those families who makes a court appearance every 8-10 weeks.

Having now sung the praises of coordinators, I close by observing that the system was not without its failures. The truth is that lots of high conflict families chewed through a succession of coordinators like weevils through cotton. There were reports of coordinators who were quick to intervene because it was a way to augment their professional practice income. Last but not least were those who were frustrated would be judges who loved to exercise “authority.” Many coordinators seemed to not apprehend that parent coordination was not a means to compensate for one party’s refusal to plan or even look at a calendar. Yes, there were problems. But in a world where Courts are being asked to live with fewer resources and more and more citizens have decided to dispense with attorneys, it is a system that warranted more consideration than it got last month.

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In this most recent U.S. Supreme Court term, the Court has heard two cases involving the domestic relations of a state.  In addition to the arguments on same sex marriage, on April 16th, the Court also heard argument on the adoption of a three-year girl.  The law at issue is the Indian Child Welfare Act. 

The Act, passed in the 1970’s gives Indian tribes exclusive jurisdiction over any child custody proceeding involving a Native American child who resided or was domiciled on Native American land.  The Act was passed to address the removal of Native American children by public and private adoption agencies and it places priority on allowing the child to grow up in the traditions of their culture by allowing the tribe and the child’s relatives a say in the placement of the child.  What is unusual about this Act compared to most state’s custody laws is that is significantly broadens the class of individuals that have standing to raise issues about the adoption.  Most states limit standing to the biological parents and, under some laws, the grandparents of the child.

The Indian Child Welfare Act, in this instance, was applied to overturn the adoption of a girl by a South Carolina couple.  The girl, now three years old, was returned to her biological father in Oklahoma, a member of the Cherokee Nation, after he sought to overturn the adoption based on the natural mother’s failure to obtain his consent.  The case made its way through the entirety of the South Carolina legal system and sided with the natural father on the basis of the Act, despite identifying the adopting parents as “ideal parents” – small comfort to them, no doubt.

The adoptive couple’s appeal is based on two questions:

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law, and;

(2) Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The second question is interesting due to the case law in various states as to whether or not unwed biological fathers have the same decree of protections as mothers.  In Pennsylvania, any adoption requires the voluntary or involuntary termination of both biological parents’ rights, and both parents are protected under Pennsylvania’s child custody law; marital status is irrelevant and updates to the custody statute made it (parental) gender neutral.  This does not presume that complications can occur in instances where paternity is not established, but generally, adoptions in Pennsylvania require notice of an attempt to terminate parental rights and afford the biological parents the opportunity to contest the termination.

The Supreme Court’s decision in this case may result in the clarifications to existing law as to the definition of “parent” under the Act and the extend of the scope the Act has for addressing the adoption of Native American children where the proceeding otherwise satisfied prevailing state law.  The Act, as a Federal statute, would preempt the laws of the states where the adoption occurred so ultimately the Supreme Court will render a decision fairly narrow in scope as to whether the Act applies to this adoption and, if so, the overturn of the South Carolina adoption would be upheld.

It is worth remembering that nuanced, debated legal issues impact the actual lives of people.  The parents that raised this child from infancy until she was three were abruptly taken from this child’s life; the father of the child may never have known the mother put his daughter up for adoption and is now trying to forge a relationship with the child.  Whatever the Court’s decision, one side will be bitterly disappointed and likely never to see this child again.  

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Remember earlier this year when I wrote about the Superior Court’s ruling that a party has a right to a de novo hearing for a custody coordinator’s decision? Well, forget all of that.  As of today, April 23^rd, the Pennsylvania Supreme Court adopted Rule 1915.11-1 which states that parent coordinators are no more and the only judges have the authority to make decisions in child custody cases.  The new Rule reads as follows:

Only judges may make decisions in child custody cases.  Masters and hearing officers may make recommendations to the court.  Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases.  Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013).  Local rules and administrative orders authorizing the appointment of parenting coordinators also shall be deemed vacated on the date this rule becomes effective. 

The role of the parent coordinator was established and upheld by the Superior Court in the Yates decision in 2008.  The revised Rule, which was adopted by the Supreme Court upon the recommendation of the Domestic Relations Procedural Rules Committee and after an opportunity for public comment, supersedes the case law and renders null and void any existing parent coordinator order.   

So ends the quasi-judicial role of parent coordinators.  Whether this results in an uptick of contempt and custody modification petitions remains to be seen, but as it was so eloquently put by the (clearly exasperated) trial judge in the A. H. vs. C.M. case (in which the Superior Court upheld the right to a de novo review of a parent coordinator’s decision) judges may need to brace themselves to deal with an increased amount of "some talent show communication[s].”

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Often times, and for good reason, clients have concerns about how they are going to pay for their divorce. If the case is simple, it may just be a matter of paying their attorney fees. But if it is more complicated, it could involve substantial expert fees as well. These concerns are increased exponentially if the client is the dependent spouse, who does not work outside the home and does not have access to funds. Then a concern about meeting day to day living expenses may arise as well. 

While a party to a divorce in Pennsylvania can request interim counsel fees as part of equitable distribution, they are not often granted. So what is a person in the middle of a divorce to do?

Brendan Lyle, an entrepreneur from Austalia, started a business in New York City to help people going through a divorce pay their counsel, their experts and other expenses. In a recent article on Mr. Lyle in the Wall Street Journal, Anne Kadet writes:

Mr. Lyle's company fronted the legal fees and got paid when the settlements rolled in. . . . So far, he's loaned cash to 25 divorcees in amounts ranging from $20,000 to $700,000, with the typical loan averaging $260,000. Clients use the money to cover the costs of lawyers, forensic accountants and living expenses. Can you imagine borrowing that much to get divorced? It could be worse. Mr. Lyle's biggest case was back in Australia, where a client borrowed $500,000 to pay her divorce lawyers, plus another $300,000 for her criminal defense. She was up on attempted murder charges for trying to stab her husband with a butter knife.

While a loan from Mr. Lyle may not be for everyone (in fact, most), it is an interesting solution to a frequent problem. Much more often, however, we see parties taking loans from family members or friends or paying their expenses on credit cards until their divorce is finalized. Clients can also consider advancing money from a home equity line of credit or other funds from the marital estate to pay for a divorce. Additionally, parties in the midst of a divorce can explore borrowing against a non-retirement portfolio, using the investments -- stocks, bonds, mutual funds -- as collateral. Regardless of the path chosen, there are creative ways to finance a divorce out there. 

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Our friends at the Delaware Trial Practice Blog recently summarized a Delaware case involving a familiar Pennsylvania support concept - the mortgage deviation.

Leslie Spoltore of our Wilmington office discusses how the court upheld the reduction of a father's support obligation by considering the mortgage expense related to the marital residence.  The expense were directly to the needs of the children (i.e. "shelter") and it resulted in cancelling out the father's child support obligation completely.

The mortgage deviation in Pennsylvania is found at Rule 1910.16-6(e) and allows for the party residing in the residence to seek a deviation (either upward or downward depending on who has the support obligation) in the support amount regardless of who is the support paying party.  This deviation is available at the discretion of the court and different counties have different ways to deal with it beyond just the math - some counties are less inclined to award the deviation if the house is not being sold or there is a concern that this inflation (or deflation) of support could be a long term adjustment.

Regardless, the only absolute in Pennsylvania's rule is that a mortgage deviation is not permitted after a final resolution of all outstanding economic claims.  In other words, if you get divorced and went through equitable distribution, your ex-spouse is not going to be required under any circumstance to contribute to your mortgage even if you can not afford it.

Delaware uses a different methodology, but the outcome between the two rules is similar.

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 We live in an age when both people and transactions cross state borders more and more often. Evidence concerning what occurred in Pennsylvania is often located outside of the four corners of the Commonwealth and thus, beyond the subpoena power of Pennsylvania Courts.  This is true for all forms of litigation, not just family law.

In the past, if you needed to secure documents or depose a witness outside our borders, you had to secure something called a foreign commission.  Essentially, one filed a motion in the Pennsylvania case to be permitted to conduct discovery outside of the Commonwealth.  Your opposing parties could contest the motion here, typically on the basis that the evidence was not relevant or a mere fishing expedition.  If your relief was granted, you next hired counsel in the jurisdiction where the evidence or witness was located.  That attorney would file a miscellaneous action in the foreign court (“foreign” meaning outside Pennsylvania) specifying the needed discovery, indicating that Pennsylvania had approved pursuit of it and asking for leave to proceed in the other state.  This action would be served on the witness or records custodian outside Pennsylvania.  That person or entity had its own right to ask that the relief be denied. Again, most often that would be because they denied relevance.

Effective December 24, 2012 Pennsylvania adopted the Uniform Interstate Depositions and Discovery Act (Act No. 183 of 212: SB 79 of the 2011 Session).  This act has been adopted by 28 states (including (DE, MD, NY, VA).  The purpose is to streamline the old cumbersome procedure by making it a one-step process.  If you the litigant in Pennsylvania need evidence in New York, you will need to follow the New York statute and engage counsel in New York to actually take the discovery.  But the “permission” part of the old foreign commission rules has been abandoned as far as the Commonwealth is concerned.  Similarly, if a New York litigant wants to take discovery here the New York litigant issues a New York subpoena to the Prothonotary in the county where the witness or evidence is located.  The Prothonotary is to “promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.” 42 Pa. C.S. 5335(b). The Pennsylvania subpoena is to conform to the foreign subpoena in content and have the identity of all parties and/or counsel, if represented. The statute expressly adopts Pa. R.C.P. 4009.21-.27.

Pennsylvania parties served with such a subpoena must file for a Protective Order under Rule 4012 if they wish to oppose the request discovery.  Otherwise, the re-issued foreign subpoena (now in its Pennsylvania form) is subject to the same powers as any other Pennsylvania subpoena including the right to enforce through contempt. 42 Pa. C.S. 5337.

The statute makes clear that parties in Pennsylvania may informally comply.  The remedy is limited to subpeonae issued by any of the United States, Puerto Rico, the US Virgin Islands and the District of Columbia.

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Typically, the purpose of columns such as this is to report on rulings by courts.  But there are times when law becomes established because courts do not rule on a particular issue.  Such is the case with a ruling last week where the Pennsylvania Supreme Court decided not to give further consideration to a ruling by the Superior Court on an issue that has gained lots of attention in the past few years.

We all know that parents have a duty to support children but the law has long held that children may also be held responsible for the debts of their parents.  The law has been rarely used until the last decade as hospitals and nursing homes simply wrote off what they could not collect in third party payments.  But as Medicare has become more reluctant to pay, these health providers have become more aggressive in asserting their rights.

From September, 2007 to March, 2008 John Pittas’ mother was confined to a rehabilitation center by reason of a car accident.  Upon discharge she left and moved to Greece.  The health care facility brought an action against one of her sons.  Curiously, they did not institute it against all of her children nor did they join Mr. Pittas’ father.  Arbitrators ruled against the HCR Manor Care facility but the Common Pleas Court reversed the ruling and entered judgment against Mr. Pittas (the son) for just under $93,000.  The son appealed to the Superior Court and in May, 2012 that Court affirmed the trial court judgment for $93,000. 2012 Pa. Super. 96.

Section 4603 of the Domestic Relations Code states that children may have legal responsibilities to provide for an indigent parent. The statute excuses such support if the child cannot afford to contribute or the parent had abandoned the child for more than ten years of the child’s minority. The person or institution seeking to impose the duty on the child has the burden to show that the person they have sued can contribute.

In this case HRC Manor Care demonstrated that the child had income of $85,000 a year or more. The Court decided it was not an abuse of discretion to decide that Mr. Pittas had the ability to support his Mother and noted that he did little to provide actual evidence of hardship.  They also dismissed claims that his father and siblings were necessary parties.  The Superior Court ruled that it was his duty to join anyone he felt had a duty to contribute.  Lastly, they argued that indigency was not proven. Here the Court adopted the common law definition recited in Savoy v. Savoy, 641 A.2d 596 (Pa. Super. 1994) and noted that indigence did not equate to “without any resources.”  Again the Superior Court noted that proof of a parent’s resources was something that the Defendant could have shown as part of his defense.

The Defendant asked the Supreme Court to review this case.  In a one sentence order entered on March 27, the Court denied the request to hear the case.  The effect is to affirm the ruling of the Superior Court.  While the legislature has seen some movement on bills to limit child liability, the Commonwealth is not really in a financial position to take on a larger role in funding care for the indigent so a legislative solution is not likely.  In the meantime, make certain that mom stays healthy if she is not already wealthy.

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(Image by Bettman/CORBIS) - Lunch at 800 feet only seems normal if you are used to it.

I recently took a phone call from an individual who wanted to learn about the laws related to the emancipation of a minor.  This person would not identify herself, but described herself as a “case worker” who was calling for a family friend who wished to remain anonymous: a fifteen year old girl who wanted to become emancipated from her parents due to what she described to the case worker as abusive conditions. 

My immediate response was to ask whether the police or Children and Youth Services had been called.  The caller did not know, but did not think so.  Since the caller was a “case worker” who described working with pregnant teens and “at risk” kids, my next question was simple: if there is abuse, don’t you have a duty to report the case to CYS and the police?

Pennsylvania’s laws for mandatory reporting can be found under 23 Pa.C.S.A. § 6311, which is the statute controlling Child Protective Services.  Section 6211(a) broadly states that anyone who comes in contact with children “in the course of their employment, occupation or practice of a profession shall report or cause a report to be made…when the person has reasonable cause to suspect…that the child under the care, supervision, guidance or training of that person is a victim of child abuse.” 

This section identifies the basic procedure for mandatory reporters to bring allegations of abuse to the attention of Child Protective Services.  Not surprisingly, this section of Pennsylvania’s code received quite a lot of attention in the midst of the Jerry Sandusky/Penn State scandal and criminal case.    

The caseworker’s response to my question was slow and contemplative: “Yeah. I guess I do have an obligation to report.”  This was clearly the first time she had put her friend’s situation into the context of her profession.  When it comes to deeply personal issues such as abuse, divorce, or addiction, the personal and professional line can be easily blurred and it made me wonder whether she “missed” connecting her friend's personal experience with her job's duties was due to the context of how it was presented.  Had this situation been presented to her at an intake session with a teen, the case worker would have likely seen the abuse and notified the authorities.  When the facts were taken out of that context and she was addressing them as a friend with personal knowledge of all the people involved, her judgment clouded and her professional instincts were not triggered.

Most any job eventually desensitizes a person to the unusual circumstances of their profession.  What is strange and fascinating to one person is the job description someone else finds routine.  Someone free climbs a tower at 1,700 feet to change a light bulb; the Louisville basketball player who suffered the terrible broken leg last week was a shocking sight, but I bet that was not the first – or worst – open fracture of a leg his orthopedic surgeon has seen in his career.  A client’s divorce will always be the worst one they can experience, but often the attorney has had to deal with even more difficult facts.

In this instance, the social worker who deals with kids in broken homes, addiction, teen pregnancy and bullying may not view her abused friend as being someone to whom she has a duty to report this to the authorities.  She tried to be a friend, instead, and called an attorney.  This is not an excuse for the case worker, but it could indicate a loss of perspective of what is normal and where her duty to report begins and ends under Pennsylvania law.

My call with the case worker was short; perhaps no more than a minute.  I would like to think she hung up with me and immediately called CYS; possibly the police department.  Hopefully not another attorney to ask about Pennsylvania’s emancipation laws.

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(Image: http://www.vam.ac.uk/b/blog/sketch-product/your-name-here)

A recent case involving the name change of a child highlighted the relevance change of name cases can have on custody litigation.  The case (In re: Change of Name of W.E.K., 12-03,079) arose out of Lycoming County in which the natural Father sought to have his child’s last name changed from the Mother’s married last name to his last name.  The facts of this case are unusual to the extent that Mother, Father and Step-Father were all aware of the other’s existence at the time of conception.  Notably, all three are Army veterans and served overseas in Afghanistan.  Mother was having relationships with both Father and Step-Father at the time of conception and, despite the knowledge that Father was most likely the biological Father of the child, named, Step-Father as the “birth father” on the Birth Certificate. 

Pennsylvania’s name change statute is found at 54 Pa. CSA §702 and the Pennsylvania Supreme Court has held that a Court should exercise discretion when acting on a name change petition and use its good sense, common decency and (consider the) fairness to all concerned and to the public.  Petition of Falucci, 50 A.2d 200, 202 (Pa. 1947).  Child name changes are more stringently considered than adult name changes and it is the petitioning parties’ burden to establish that a name change is in the child’s best interest.  In re: Grimes, 609 A2.d 158, 161 (Pa. 1991). 

The child was born on August 25, 2011 and Father filed a Custody Complaint on September 7, 2011.  Subsequent biological testing confirmed that Father was the child’s biological Father and the court also found that both Step-Father and Mother were aware prior to their marriage that the unborn child was most likely Father’s biological child.

Difficulties with the parties’ Agreed Custody Order ensured and Father had approximately an eight (8) hour trip from his home in Maryland to Mother’s home in Williamsport, Pennsylvania.  Once Father was no longer being deployed, he petitioned to modify the original 2012 Custody Order to allow him to have weekend overnights with the child at his home in Maryland.  

The Name Change Petition originated from Father’s desire to strengthen his bond with the child and alleviate any confusion the child might have in the future as to is his biological father.  Exacerbating the situation was Mother’s testimony at the name change hearing that she does not refer to Father as “Dad” or “Daddy” or “Father” to the child.  Instead, she refers to the child’s Step-Father as “Father” and that “Father” is a stranger to the child.  Other testimony revealed that the Mother was less than forthcoming to Father’s status as biological father and his custodial rights, particularly, to listing him as a contact for the child’s physician, rather than a parent.

Among those reasons cited by Father for the name change include: that he is legally responsible for the child; that utilizing his surname will clear up the child’s confusion as to the identity of his Father; that it will increase the bond between Father and child; and that Father is concerned about Mother’s alienation of him from the child.   Based upon the testimony of the parties, the court share within his concern that Mother was actively alienating Father from his son.

Mother’s argument was that it was important for her to share the same surname as her child and that any interference between the relationship between Father and child has no bearing on whether or not the child’s surname should be changed.  Applying the statute and factors found in the Grimes case, the Court determined that it was in the child’s best interest to have Father’s surname.  The court found that the only applicable factor that needed to be considered was the natural bond between Father and the child.  Due to Father’s efforts to obtain custody and clear motivation in continuing to foster a relationship with this child, the court viewed those facts as having significant weight to consider the child’s name change.  The court found that a bond existed between Father and child and that such a bond will continue to increase as Father receives additional custodial time.

The Grimes case identifies two additional factors for considering a name change: that there is a social stigma afforded to a particular name within the community, and; that the child is of sufficient age to intellectually and rationally understand the significance of the name change.  Due to the fact the child was sixteen (16) months old at the time of the Petition, the court did not consider such factors to be relevant to this case, but they nevertheless did further analysis of those factors to help make this opinion a more complete analysis of the issue.

The Court is conscious of this being a battle within the larger war of custody.  Mother’s motivation for utilizing her husband’s surname for the child appears to be rooted in her attempts to distance she and the child from Father and to eventually alienate him completely from the child’s life.  The court references testimony from the parties’ paternity litigation to identify that Mother has been disingenuous with her reasoning behind her desire to keep the child’s surname.  In what will no doubt be referenced in future custody litigation, the Court found any confusion the child may experience would be a product of Mother’s efforts to alienate the child from his father.  Mother’s efforts to alienate the child from the Father justify granting the name change as being in the child’s best interests. 

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Child abuse cases are extremely difficult to deal with by the court and attorneys. Making them worse is when a parent is unable to accept the reality that a spouse - the abuser - has to be cut out of their lives if they hope to keep their children.  A recent case in Berks County is such a situation. Fortunately, the Court and those acting on the behalf of the children stepped in and have given these children a chance at a better life.

In January of this year, Judge Jeffery Schmehl of Berks County wrote a strong Opinion in favor of the termination of a mother’s parental rights to her children, ranging in ages from one to seven.   The facts of the case are as heartbreaking as they are disturbing, but demonstrate the Court’s interests in protecting the welfare of children and the application of 23 Pa.C.S.A. §2511 to involuntarily terminate a parent’s rights.

Judge Schmehl’s Opinion was written based on Mother’s appeal of his order terminating her rights.  Specifically, she sought reunification with her four children (her two older children have resided with their paternal grandmother since 2008 and were not subject to the parental termination actions).  The Mother was involved in two abusive relationships with the natural Father of her children and her Husband.  Neither of the men filed appeals to the Orders terminating their parental rights.  Her husband was incarcerated for physically abusing their infant daughter.

Typically, parental rights will be terminated if a parent has not had contact with their child; or has failed to fulfill a parental role with their child for a period of six months or more.  In the instant care, the Mother may not have technically failed to have contact with the children for six months, but as the facts demonstrate, she displayed conduct which fell within §2511(a)(2) and allowed for termination on the grounds that “the repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or assistance necessary for his physical or mental well being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.”

Mother had been treated for mental health issues for a long period of time prior to the termination hearing.  After having arrived on the radar of Berks County Children in Youth Services in or around 2003, she accumulated nine (9) reports to CYS over an eight year period.  The most recent report being in November 2011 when the children were placed in the care of the agency pursuant to a Voluntary Placement Agreement signed by the children’s parents. 

Their youngest child, 6 months at the time, had to be hospitalized for major bruising and injuries consistent with the violent shaking of the child by an adult.  The authorities quickly determined Mother’s husband to be the offender and he was subsequently found guilty of simple assault and endangering the welfare of the children.  This same child also showed pronounced flattening of the back of her head due to having been placed in a car seat for extended periods of time.  In short, these children were subject to what amounted to neglect, abuse, and a total lack of suitable living conditions including vermin infestation.  Mother had numerous violations of the safety plans which had been instituted for the family by CYS while they were undergoing general protective services.

Mother’s mental health problems were insufficiently addressed by her, notably, her continued contact with her husband while he was incarcerated for abusing their infant child, as well as her failure to comply with urine analysis testing.  She also subjected the children to phone calls with her husband while he was incarcerated.  Most disturbingly, Mother has little to no understanding of the severity of the crimes committed by her Husband against the children; that she was still trying to perpetuate a relationship with her Husband, as well as between he and the children demonstrated to the Court that Mother was unable to comprehend what was best for the children or to serve as their protector. 

Mother took no responsibility for the injuries to their infant daughter, in fact, she was found to have written a letter to Father acknowledging that she did not blame him for the baby’s injuries.  Mother’s narcissistic behavior prevented her from being able to adequately perform her parental duties and she clearly placed her needs above those of her children.

While Mother was failing in her psychological and emotional evaluations, the children were doing well in their foster placements.  The children, having been given stable and healthy living environments, began to make progress and were having their physical and emotional needs met.  The most detrimental element for these children was their parents.  Once their parents were removed from the equation, the children began to thrive.

In issuing his termination Order, Judge Schmehl cited applicable case law and statutory authority which allows the Commonwealth to terminate the parental rights and duties of a parent if the parent is unable to or refuses to perform those duties.  It is the child’s right to fulfillment of his or her potential in a permanent, healthy, safe environment with proper parenting that supersedes the parents’ constitutional right to custody in the rearing of the child. Citing, In re: DJS, 737 A.2d 283, (Pa. Super 1999) and 23 Pa.CSA 2511(b).

In terminating the rights of a parent, the court must give primary consideration to the development, physical and emotional needs of the child.  In this case, CYS had, initially, two concurrent goals: return the children to the most appropriate parent; and the adoption of the children by third-parties.  Once it became clear that the most appropriate parent – Mother – was not appropriate at all, adoption of the children became the priority.

Of all the issues which are present in this case, it appears that the most damaging to Mother – and by extension the children – was her refusal to sever ties with her abusive husband.  In refusing to chose the health, safety, and welfare of her children over her relationship with a child abuser, the Court took the view that she was refusing to perform parental duties under Pennsylvania case law and statute.  Ultimately, Mother’s desire to have a strong bond with her husband and her failure to improve the conditions which led to the children’s placement, justified the termination of her parental rights. 

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The immediate prompt for this brief article is the report on February 23, 2013 that Tiger Woods and his ex -wife Elin Nordegren were spotted at an event where they spoke together not for 30 seconds but 30 minutes.  In one sense this is not newsworthy at all but during the week, I had a spate of cases where I know the parents or friends and family of recently separated couples and where the parents/friends/family always knew that this marriage could not last and/or the couple never belonged together or he/she changed and is now unworthy of the friend or family member. This happens every day but when it happens to friends and family we want to rush to support the person we are closest to with words of support.

Express those views with caution or at your peril. Yes, you never did like his wife or her husband.  Yes, you saw all of the failings and frailties that your friend or loved one could not see; blinded by good looks or charm or in too many case: “none of the above”.  But when your friend finally screws up the courage to end the relationship or move in that direction, be aware that today, the rules are different.

Separation and divorce are never easy.  As folks who see this everyday, we recognize that a failed relationship is a difficult thing to face.  But in many cases, “history” or “children” or whatever mean that there is a wide gulf between separation and divorce. Friends and family who step into that breach with their views do so at their peril as couples often second guess themselves today and decide to reconcile.  If that occurs, your candor in expressing your views about the spouse is the only things that is left and sometimes that means loss of a friendship or relationship that you treasure.

If your friend or family member comes to confide in you that he or she needs to end their relationship with a spouse, be supportive.  But do so knowing that many marriages irretrievably broken on Monday are back together in some bizarre way by Thursday and that too much vocal support at your end could end up costing you an important friendship.

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It came over the newswires that five people had been shot and three killed in the Court House in Wilmington DE.  As trial attorneys in a field where the Court Houses are part of our daily existence, hearts stopped for a moment.  We have family lawyers in Wilmington and we know they go through security just as we do in Pennsylvania.  We go through security staffed by ladies and gentlemen responsible for making certain that bad things don’t happen on the inside.  But from the reports we have received thus far, a disgruntled Father decided that he wasn’t bothering with security.  He would just start shooting in the lobby.

In thirty minutes I am due in the Chester County Court House to judge a mock trial competition for high school students.  The students will be over prepared, nervous and probably won’t realize just what service the sheriff who pats them down provides to them.

Ordinarily, I don’t stop to think about that service either.  These folks are my friends and I have come to see them as such.  But tonight will be different.  Much as the parents of Sandy Hook awakened to a new reality on December 21, all of us who work in the courts will enter with a new level of respect today.

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Robert Epstein of our Roseland, New Jersey office writes for the New Jersey Family Law Blog and recently posted an excellent piece on a New York custody case which is instructive for people using social media in any jurisdiction.  

A mother in New York posted insulting comments about her 10 year old son on Facebook.  In the ensuing custody case between she and the father, the father presented evidence of Mother's remarks and asked the Court to revoke her legal custody rights to the child.  The Court ultimately agreed with the father and even went so far as to enter an Order of Protection barring her from posting any comments - positive or negative - about her children. 

Check out Robert's blog entry and read more about an emblematic case against exposing all of your thoughts and feelings on Facebook.

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