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Pennsylvania Family Law

Updates, Events & Useful Tips Surrounding Family Law Issues

ALL IN THE FAMILY: SUING MOM AND DAD FOR COLLEGE

Posted in Divorce, Practice Issues, Support

College support is back in the news as a young woman resident in New Jersey has sued her parents to contribute to her undergraduate education at Philadelphia’s Temple University.  The case brings us to revisit the question of how college agreements need to be molded to meet with the new realities of post secondary education.

First we should note that New Jersey does permit Courts to award contributions to a child’s college education even where parents have not agreed.  That once was the law in Pennsylvania but all of that changed in 1990 when the Pennsylvania Supreme Court held in Blue v. Blue, that Courts had no business imposing this obligation without legislative authority.  We covered that sad history in our blog titled “The Emancipated Child” published on June 23, 2009.

But the mere fact that Pennsylvania no longer requires support of adult children after completion of secondary school does not end the discussion.  Many parents want to be a part of that experience but that desire is more often than not tempered by the desire to do this in tandem with the other parent. There once was a time when a parent would gratuitously state: “I want to fund my kid’s college.” But that was in a day when such an obligation could be paid in total for less than a single semester at a private university costs today. Times have changed.

Aside from the escalating cost of post-secondary education, the most important change in recent years has been limitations on the “ability to comply” with these agreements.  A generation ago, employment and career paths were more stable.  A parent in his/her late 30s or early 40s with an established career could feel comfortable in the belief that their well paying job would be there when the college admission letter arrived.  Today, that job stability is much more fragile.  In the past decade it has been the mid to senior level executive who has been the target of downsizing, often after a lengthy career with a single employer.  Suddenly, the college contribution provisions of an agreement that seemed an afterthought when negotiated in 2000 are an almost impossible obligation because the parent owing the obligation is now unemployed or earning less than he or she did a decade before.  Very few of these college support agreements contain clauses mitigating the extent of the obligation to fit the new economic realities.  Today, the attorney needs to address this subject with clauses that address the contingency.

The other subjects are ones of long standing.  They are:

  1. Limiting or in some other way framing the extent of the obligation.  A state school like in Pennsylvania can cost less than $20,000 per year.  Some prestigious colleges can triple that cost.  More and more parents are eschewing the old concept that their child will go wherever he or she is admitted.  These costs are paid in after tax dollars and parents are correct to question the value of what they are buying.
  2. Children and parents owe each other a duty to consult about where the child will be enrolled if the parents are to contribute.  No parent wishes to learn this vital and expensive news by surprise.  We have litigated cases where the failure to consult has been fatal to the enforcement of the obligation to contribute.
  3. Absent extenuating circumstances such as illness, children should be given a clear understanding that enrollment must be continuous and full time if a contractual college provision is to be workable.
  4. Last but not least is the matter of academic performance.  Full time enrollment with failing grades is not an investment but an economic waste.  A minimum grade point average is the least the student can contribute to this lofty enterprise in self-improvement.

    So if you are in the midst of negotiating an agreement, make certain that these details are addressed in some way so that you can have some control over your child’s destiny to the extent that it is underwritten with your resources.

NOVEMBER IS NATIONAL ADOPTION MONTH

Posted in Adoption

Leslie Spoltore, one of our partners in our Wilmington office, posted President Barack Obama’s proclamation making November National Adoption Month. Family law is an area which often deals with difficult issues and outcomes where neither side feels like they’ve won even if the outcome is in their favor.

Adoptions, on the other hand, can be an extremely positive event where all those involved – the adoptive parents, the judge, the clerks at the Courthouse – all have a single-minded purpose of creating a new family and permanent family for a child. While some adoptions can become difficult due to competing interests of various adults, the overwhelming majority of them arise from two parents wanting to create a better life for child.

The full text of the President’s proclamation can be found at our Delaware Trial Practice Blog.

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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 CHALLENGE OF DUELING JURISDICTIONS IN CHILD CUSTODY CASES

Posted in Custody, Practice Issues

A recent published decision issued on November 7 addressed the question of how a Pennsylvania Court is to act when a Court of another state refuses to relinquish jurisdiction.  The facts are absorbing to say the least.

Mother and Father gave birth to a child in Tennessee.  They separated and Tennessee entered a shared custody order.  In late February, 2011 Mother left the child with Father and disappeared. Father remains a “person of interest” in the context of what is being treated as a homicide.  Maternal grandmother, a resident of Erie, Pennsylvania travelled to Tennessee and secured an Order permitting her to relocate the child to her home in this state.  Father was awarded visitation under the supervision of his own parents by the Tennessee Court. 

In October, 2012 Maternal Grandmother filed an emergency petition to suspend visits with Father alleging that Father had told the now seven year old child to burn down grandmother’s house and gave him matches to do so.  The Tennessee Court heard the matter and suspended visits.  

In December, 2013, Father filed in Erie County, PA to assume jurisdiction and modify.  In part, he states that he moved to Florida six months earlier.  Mother has never been found.  The child has been resident in Pennsylvania since some time in 2011.  The Pennsylvania Court scheduled the matter for March, 2014.  A week before the trial, Maternal Grandmother filed to challenge jurisdiction and attached her request to have the matter heard in Tennessee in April, 2014.  One day after the challenge to Pennsylvania jurisdiction was lodged; the Tennessee trial court wrote to the Pennsylvania Court observing that if Father had represented Tennessee’s position as one of deferring jurisdiction that was not an accurate recital of the circumstances.  The Pennsylvania Court stayed its proceedings in deference to Tennessee.  A hearing was held in Tennessee in April and it would appear that that state did not relinquish jurisdiction.  In the wake of those proceedings the Erie County judge dismissed the case as Tennessee was still acting.  

Father appealed.  A three judge panel opinion by Hon. Eugene Strassburger reversed.  The interesting factual challenge here was what status one ascribes to the “missing” parent.  If presumed alive, her last know residence was Tennessee.  The general rule of the Uniform Child Custody Jurisdiction and Enforcement Act is found at 23 Pa.C.S. 5423.  It says that Pennsylvania may modify the decrees of other states where those states relinquish jurisdiction OR a court determines that the child, the parents or other contestants do not presently reside in the state which had original jurisdiction.  The Court making that assessment can be either the Pennsylvania Court before whom the modification is pending or the original court of jurisdiction. Here, Judge Strassburger notes that the only potential litigant with a present Tennessee connection is the missing Mother and that her failure to appear anywhere in more than three years could not form a basis to assume that she was still alive, let alone resident in Tennessee. The Court then notes that the current incarnation of the Uniform Act places even greater emphasis upon “home state” jurisdiction in preference to significant contact jurisdiction.  By all accounts, Father is in Florida, mother remains missing and the child has lived with her Maternal Grandmother in Pennsylvania for three consecutive years.  The case belongs in Pennsylvania and deference to the original jurisdiction court was not to rule the day. 

T.AM. v. S.L.M. and D.M.S.  844 WDA 2014, 2014 Pa.Super. 255.

Note: The caption lists Mother as a party to the Pennsylvania proceeding.

HUSBAND DRIVES ESTRANGED WIFE’S CAR INTO RIVER, GOES ON NEWS AND MAKES IT WORSE

Posted in Divorce, Equitable Distribution, Protection from Abuse

I’m sure it felt cathartic at the time. An estranged husband rolled his wife’s 1990 Camaro into the Delaware River. He was frustrated that his wife had not turned the family mini-van over to him.

The funny thing about having impulse control issues is that there is a certain lack of foresight as to the consequences. For instance, there is the impact on your divorce case: destroying a marital asset such as a car will likely result in the value of the vehicle being assigned to him at equitable distribution.

Other consequences that this gentleman failed to consider would be the law enforcement response to his actions. Perhaps it did not occur to him that dumping a car in a river might be illegal and that the police have the obligation to send divers into the freezing cold, 30 foot deep water to make sure no one was in the vehicle when it went under. He might not have considered that the police consider having to deploy divers into a dangerous environment for a frivolous reason the reckless endangerment of law enforcement officers.

In his mind, however, the husband, John Kramer, didn’t think he was doing anything wrong. How do we know this? Mr. Kramer’s next move, after having had an arrest warrant issued and his actions garnering a lot more attention that he expected, was to talk to a reporter. In what is probably an interview chock full of good sound bites, the husband, John Kramer, pleads to Philadelphia CBS3’s Todd Quinones, “I didn’t know I was doing anything wrong.” He was sick of fighting over the car and really wanted to use that mini-van.

Of all of his poor decisions, however, Mr. Kramer’s greatest sin was that of pride: according to detectives interviewed by Quinones, he boasted to his wife over text that she could find her car in the river. Unfortunately for him that text violates the Protection from Abuse Order she has against him which prohibits direct and indirect contact. That text could constitute contempt of the PFA and potentially land him in jail. The PFA contempt would be a separate action from the criminal charges the police has filed against him.

Mr. Kramer’s interview made a bad situation worse by making admissions as to the commission of the act and having fled the area. He caps off his day of backfiring decision-making by then dictating through the media his conditions for turning himself in to the police (his demand: released in eight hours on an ankle monitor). This string of decisions took what may have been a frustrating and contentious divorce case and now expanded it to criminal charges, the likelihood of fines, jail time, and a worse outcome in his divorce (and, I assume, any custody case). The momentary gratification of antagonizing an estranged spouse rarely results in any long-term gain.

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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.

SUPREME COURT TO TAKE UP SAME-SEX MARRIAGE? SIXTH CIRCUIT DECISION SETS UP APPEAL

Posted in Same Sex Marriage

PIC

The momentum of success experienced by marriage equality advocates experienced its first set back on Tuesday, November 4th when the Sixth Circuit U.S. Court of Appeals (Ohio, Michigan, Kentucky, and Tennessee) ruled 2-1 that the states had the right to set their own rules for marriage and that any changes to the definition of “marriage” should come through the political process and not the courts.

The majority’s decision was interesting, insofar as it minimizes the Court’s role in interpreting the Constitutionality of Kentucky’s same-sex marriage ban. Judge Sutton, writing for the majority, cites concepts of Federalism to justify his position; the dissenting justice, Judge Daughtrey, takes exception to that argument and basically views the majority’s opinion as an abdication of the Court’s role to interpret the constitutionality of the law. Not surprisingly, each justice comes from a different ideological branch of the political tree with Judge Sutton having been appointed by President George W. Bush (as well as being a former law clerk to Supreme Court Justice Antonin Scalia); while Judge Daughtrey was an appointment from President Bill Clinton.

The Sixth Circuit’s break with the Fourth, Seventh, Ninth, and Tenth circuits decisions to strike down same-sex marriage bans may result in the Supreme Court taking up the case soon. The Supreme Court declined to take up a same-sex marriage case in its most recent session on the basis that there were no inconsistencies among the four circuits who have considered the issue. The success of same-sex marriage proponents was actually preventing what some might hope would be the coup de grace of same-sex marriage bans.

In September, Supreme Court Justice Ruth Bader Ginsburg told an audience at the University of Minnesota School of Law that the Fourth, Seventh and Tenth Circuits’ similar decisions on the issue did not create the “urgency” needed for the Supreme Court to consider the legal issue. If the Sixth Circuit’s decision doesn’t create “urgency” then it at least gets the issue on the Court’s radar. In the interim, it is possible that the Sixth Circuit case, Bourke, et al. v. Steve Beshear, et al., will be heard by the entire Sixth Circuit bench. The recent decision was made by the Circuit’s three justice panel; the appellant can ask for a vote from the Sixth Circuit en banc before seeking certiorari to the U.S. Supreme Court.

While viewed as a set-back for marriage equality proponents, it may prove to be the trigger for a Supreme Court review of same-sex marriage bans.

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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.

REMARRIAGE ADVERSELY AFFECTS FINANCIAL AID

Posted in Uncategorized

ThinkstockAn informative article written by Charlie Wells of the Wall Street Journal addresses the issue of remarriage and the effect it has on the financial aid packages of college students. Pennsylvania does not statutorily require a parent to provide financial support for their child’s post-secondary (i.e. college) education. They can voluntarily take on that responsibility, but in my experience, few people are willing to commit to the undefined costs of college in a Marital Settlement Agreement.

For the parent, however, they may be faced with a different analysis, namely, whether remarrying will adversely affect their child’s college financial aid package.

Under the Higher Education Act of 1965, parents have to report their new spouses’ incomes on the Free Application for Federal Student Aid (FAFSA). Household income will determine the extent to which the student has the ability to pay for college, even if income alone does not fully explain the family’s ability or desire to pay the student’s college expenses. Consequently, a remarried parent will find that their spouse’s income has raised the household income from a financial aid perspective and limited their child’s loan options.

Unfortunately, there is no easy way to deal with these issues accept pursue an appeal of a financial aid decision and hope that someone else in the process will understand the situation; unfortunately, according to Mr. Wells, that’s rarely the case.

Due to the annual re-examination of financial aid, the additional side-effect of this problem is that it can result in a parent making a difficult decision between moving on with their life and remarrying, or putting those plans on hold for a number of years until their child (or children) is through college. For families already under stress, this is an unwelcome complication.

(Photo Credit: Thinkstock)

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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.

CREDIT REPORT, PLEASE

Posted in Divorce, Practice Issues

In the past decade, Americans have racked up a prodigious amount of debt and it is fairly common for clients in divorce to not really understand how their debt is structured.  Was the U.S. Airways VISA joint or husbands with wife designated as an authorized user?  When trying to disentangle a couple’s financial relationship it is important for lawyers to know these things. Credit cards are also a fertile ground for fraud.  We have seen several instances where a spouse without access to his/her own credit, applied for a card or credit line on behalf of their mate without the inconvenience of telling him/her.  Of course, chances are excellent that you won’t have to pay for a credit fraudulently obtained on your behalf but that is often a laborious and complicated process.

Mortgages are complicated as well.  What laypersons call a “mortgage” is actually two legal documents.  When you borrow the money you sign a promissory note to repay it.  Then the lender asks you to sign a mortgage.  The mortgage is a pledge that the lender has dibs on your house if you default in paying the note.  What sometimes occurs is that one spouse has bad credit.  The lender will lend but only to the spouse with good credit.  Meanwhile, if the house is to be jointly titled, the lender wants both owners to promise that the lender has a secured interest in the house.  The “mortgage” is the instrument that provides that security.  So, if Wife has good credit and Husband has no credit or bad credit, the lender will have Wife only sign the note but both spouses sign the mortgage.  This means that Husband has no obligation to pay the note but if Wife fails to pay, the lender can foreclose on the house and Husband has no right to object.

If you are going through a divorce, order a credit report from Equifax, TransUnion or Experian. Federal law requires credit agencies to give you a free report once per year. It won’t reveal your credit score (that you will pay for) but it does show you what the credit information compilers think you have out there in the world of debt.  Study what you get and if things look wrong, it may be time to call the lawyer.  Note there are many subscription services that will monitor you for a fee.  That is a different animal than the report itself.

FACEBOOK IS A VIRTUAL ADDRESS…UNLESS IT’S NOT

Posted in Divorce, Practice Issues

Facebook reutersTo the best of my knowledge, using Facebook as a way to serve legal papers or proving notice of a lawsuit or other legal issue has not been addressed by Pennsylvania courts, but that doesn’t mean it won’t in the future. Recently, two different states took two different approaches to the use of Facebook as a method of legal notice.

This month, a court in Oklahoma ruled that a woman could not use Facebook to notify the father of her child that she was pregnant in advance of putting that child up for adoption. The basic facts are that the couple had a brief sexual relationship resulting in a pregnancy. Though they had little contact with each other after the encounter, the mother sent the father a Facebook message informing him of her pregnancy. Though he claims to have never seen the message, he learned of the child’s existence shortly after its birth and visited the baby for several months. He later had his parental rights terminated and the child was adopted with the mother’s consent.

The Oklahoma Supreme Court ruled in a 6-3 decision that the Facebook message was insufficient for providing notice to the father of the pregnancy because it is not “reasonably certain to inform those affected.” There is a strong dissent which basically states that the Court is being naive that Facebook is less reliable than other forms of communication and that other forms of notice (face-to-face; mail) can just as easily be ignored.

It is worth noting that Oklahoma is also where a major adoption case arose involving a Native American child and was ultimately adjudicated before the U.S. Supreme Court.Perhaps that case has made Oklahoma’s courts particularly sensitive to issues of verifiable notice for legal actions?

The second case in which Facebook was recognized as a valid form of notice and service was in New York where a father placed his child’s mother on notice of his intent to have child support ended since his child had turned 21 years old.

The New York father had no address for his child’s mother; mailed documents were returned without a forwarding address. However, the father was aware of the mother’s activity on social media, including her “liking” photos on his wife’s page. The judge ruled that serving the mother personally had proven “impracticable” and that the Facebook message was a viable way of contacting the other party.

These are two cases with two significantly different perspectives on the reliability of social media to effectuate notice of a legal action. How this issue will be addressed in Pennsylvania will remain to be seen, but it will clearly need to be only after exhaustive attempts to serve under the traditional methods have been taken.

(Photo Credit: Reuters)

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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.

(UPDATE) PA CHILD ABDUCTED BY FATHER IN SEATTLE – OCEAN CROSSING FEARED

Posted in Custody
Billy Hanson (Age 9)

Missing: Billy Hanson (Age 9)

About a month and a half ago I wrote about parental kidnappings and Pennsylvania’s statute designed to prevent such situations.  Based on numerous reports going back to mid-September, it unfortunately appears that such a situation is occurring right now out of Seattle, Washington.

Around September 12th, Seattle area newspaper blogs and other forums began reporting about a situation involving a nine year old boy and his biological father. Billy Hanson had been visiting his father, Jeffrey Hanson, in the Seattle area during August and was scheduled to return to his mother in Pennsylvania on a September 4th flight. After never getting on the plane, his mother, Joanna Hanson, contacted the authorities and about a week later the FBI issued a federal warrant for his arrest on the charge of international parental kidnapping.

Jeffrey Hanson and his son left a marina in Seattle on or about August 30th and there are reports that they were going to a nearby island, however, at this point and based on other information, the authorities believe he may be trying to cross the Pacific to Tahiti, Hawaii, or travel south to Mexico. Jeffrey Hanson is apparently a competent open sea sailor and his sailboat, “Draco,” is capable of handling such voyages.

It is important to note a fact and allegation relayed in the kirotv.com article by Graham Johnson: (fact) the FBI was not brought into the case until about September 10th, six days after Billy was due to return to Pennsylvania, but too late to issue an Amber Alert, and; (allegation) that a family friend’s concerns about Jeffrey Hanson taking the boy to Tahiti were reported to police and the FBI weeks in advance of the abduction, but were not taken seriously.

Without any information as to whether a Pennsylvania custody order applies to this case, it is difficult to speculate whether the Pennsylvania statute on parental abduction would have served any purpose. More importantly is that at this time the coverage on this case is growing and will hopefully result in Billy Hanson being returned to his mother in Pennsylvania.

UPDATE:

Billy Hanson was found with his father on a small atoll in the South Pacific earlier this week. Niue is a small island about 1,500 miles north-east of New Zealand, which may be better described as The Middle of the South Pacific. He was about 7,000 miles from home. The FBI has his father, Jeffrey Hanson, in custody where he will face charges on international parental kidnapping. This is an incredible example of international law enforcement collaborating to find this child and ensure he was safely returned to his mother and the best possible outcome for this type of situation. It will be interesting to see how the prosecution of Jeffrey Hanson is handled.

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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.

HAGUE CONVENTION ON SUPPORT ORDERS MOVES CLOSER TO RATIFICATION

Posted in Support

Seven years after becoming a signatory state to the Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, Congress passed and the President signed into law implementing legislation which will gives the treaty the procedural rules to operate. The purpose of the treaty is to provide a relatively uniform and consistent process among the signatory states for enforcement of foreign support orders.

The U.S. still has yet to ratify the treaty, though Secretary of State John Kerry points out in the linked press release that the Senate has already given its advice and consent for ratification. Once ratified, the U.S. will need to create an administrative entity to handle the enforcement of the foreign orders. Since the states already have well-established domestic relations units, I would think the main role of any Federal entity would be to simply act as the gateway into the system of registering the Order with the state or local domestic relations unit where the payor resides and utilize the state’s enforcement mechanisms to obtain the support.

We have several expatriate or naturalized citizen clients. Some of their concerns stem from whether their former spouse will reside back in their home country and make the enforcement of things like custody or child support difficult, if not impossible. This treaty, which will hopefully expand beyond the European Union, Ukraine, and some Scandinavian countries, can be an effective tool for ensuring that a parent cannot abandon their financial obligations to their children just by leaving the country.