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.

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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

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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.

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Family law is often narrowly viewed as issues affecting custody, support and divorce. Many families, however, also find themselves in Pennsylvania’s Orphans’ Court grappling with issues concerning adoption and incapacitated persons.

We live in an age when medicine often allows the body to last longer than the brain. Dementia and Alzheimer’s disease is a part of life for many families and it can make for a difficult time. Pennsylvania has adopted a flexible approach toward incapacity. The PA approach is based on the concept that elderly citizens may need help doing some things but not others.

The recent Bucks County ruling, Collins Estate, illustrates the PA model. 82 Bucks Co. L.R. 404 (June, 2009). In August of 2007, the children of David Collins saw their father starting to fail mentally. One child filed a petition to have a guardian appointed of his person (to make decisions affecting his welfare) and of his estate (to manage his assets). At a preliminary hearing in September of 2007, five of his children testified in favor of the appointment of their sibling because their father was becoming forgetful about his personal needs and his financial affairs. Mr. Collins sat quietly through the proceedings. When the Court issued temporary orders for an independent evaluation by a psychologist, however, he appealed to the Superior Court. This appeal was quashed because the proceedings were not complete.

Mr. Collins also resisted the evaluation. He retained a lawyer and demanded a jury trial on the issue of whether a permanent guardian should be appointed. The trial took five days and included testimony by Mr. Collins, his children and by the psychologist who found that he suffered from dementia. The jury found Mr. Collins incapacitated. Incapacity having been found, the Court structured an order seeking to balance the need for supervision against the rights we expect to enjoy to the use of our property. The daughter who had brought the petition was appointed guardian of the person of Mr. Collins. He had asked that his lawyer be given that task.

Mr. Collins was found to have difficulty attending to his day to day finances, his personal care and his medical needs. His daughter’s appointment provided that these decisions were to be made in consultation with her father but with the clear directive that she could rule on these matters if her father’s wishes did not comport with his welfare.

Mr. Collin’s estate consisted of roughly $250,000 in bank deposits and $1.85 million in investment accounts at Boening & Scattergood. The daughter was empowered to manage the bank deposits to manage his needs but Mr. Collins was left in charge of the investment account because he seemed to have some familiarity with the funds and how they should be invested. The Court also saw that he had a longstanding and trusting relationship with his broker. Because the funds were conservatively invested, the broker would know if Mr. Collins would begin to act in ways that seemed inconsistent with his history of managing his wealth.

Mr. Collins appealed the final decree imposing these limitations and challenging the constitutionality of the statute. 20 Pa. C. S. 5501 et seq. He also asserted that the Court exceeded its authority in conducting an inquiry into the nature and extent of his wealth. As this decree is now final, this ruling will be evaluated by the Superior Court.

The statute defines an incapacitated person as one whose ability to receive and evaluate information as well as to communicate decisions effectively is impaired to an extent that renders him unable to manage financial resources or meet essential requirements of health and safety. 20 Pa. C.S. 5501 Once this level of impairment is found a guardian is appointed. Consideration may be given to the preference of the person for whom the guardian has been appointed. But the court may overrule the request of the subject in favor of someone it believes will perform the tasks of guardian and who has no clear conflict of interest. 20 Pa. C.S. 5511(f). In Collins, the Court determined that the daughter who brought the petition was already serving in a similar capacity for her mother and that her siblings approved of her performance. On the other hand, it saw the appointment of Mr. Collin’s attorney as guardian to be potentially divisive.

This case offers a good illustration of how the statute works and the flexibility it can provide where the incapacity is partial. These are difficult cases as many aging parents either cannot sense that their mental abilities are slipping or they are resistant to giving up control of certain aspects of daily life. The litigation can also breed family conflict as children will sometimes disagree on what should occur or side with a parent because they believe it may offer them advantage when the parent does his or her estate planning. These are challenging questions and make for complex and protracted litigation because there is no “bright line” test for mental acuity.

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It seems as if, more and more, the classic story (boy meets girl, boy falls in love with girl, boy and girl get married, have a house full of babies and live happily ever after) needs a little help from science. The Center for Disease Control reports that as of 2002 approximately eight percent (8%) of women of reproductive age attended an infertility related medical appointment at some point. Given that there are approximately sixty two million women of reproductive age in the United States, the number who are suffering from infertility is staggering. 

However, as the numbers of individuals with infertility concerns rise, so seemingly do the numbers of treatments available. The real growth in the field of assisted reproductive technology (“ART”) started in the United States in the early 1980’s with In Vitro Fertilization (“IVF”). Since that time, the options available have expanded to include surrogacy, gestational carriers, and a host of medications.

With the growth in ART has come a whole host of legal and ethical questions, which many states have failed to definitely or adequately answer. As a simultaneous student of Bioethics and Law at the University of Pennsylvania, I had the unique experience of exploring how the ethical issues of ART intersect with the scant “law” which exists on the topic. While the law is equipped to deal with the usual circumstance of IVF (using the gametes of a husband and wife and implanting any resultant embryos in the wife), once you move beyond that scenario and use donor eggs or donor sperm, a surrogate or a gestational carrier, the waters become more merky. It is imperative that before anyone dives head first into the process, he or she reviews all of the potential legal ramifications with an attorney. 

For example, what will become of the embryos you do not use? Many clinics require couples to make this decision up front, but what if an individual changes his or her mind? What if an egg donor changes her mind and no longer wants her fertilized eggs to be used?  What happens if the intended parents separate while a surrogate is pregnant? What if those separated intended parents have no genetic ties to the expected child? Is it more beneficial to use unknown or known donors?  Surrogates?

Until recently, it had not been definitively determined whether a sperm donor owed a right of support to any children which resulted from his donation in Pennsylvania. 

In another matter, an egg donor, who wanted nothing to do with the ongoing custody dispute between the gestational carrier and the intended parents, was dragged into court, albeit briefly. 

All of these scenarios may require an attorney to represent the individuals involved against the other individuals involved in the realms of custody and support, but may also require representation against the medical professionals and organizations involved. Hospitals may be at a loss as to whom they should release a baby, as to who should be listed as parents on a birth certificate and as to what their responsibilities are in terms of releasing or destroying embryos.

The best way to avoid legal problems when undergoing ART, is to plan ahead and be aware of what legal situations may arise and how to best deal with them.  Cleaning up after the fact, when there is a child in the middle, is never ideal.

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We live in a mobile society.  We also live in a society that experiences a high rate of divorce.  These two facts make for some of the most contentious litigation found in the domestic relations world.  It is the fight over whether one parent, usually the one with primary physical custody, can take a child to another state to reside there on a permanent basis.

When we have children we all form the Currier and Ives image of the happy nuclear household.  The children will grow up in an intact family with the love and respect of both of their loving parents.  But when mom and dad split and mom shortly thereafter announces that she wants to move to Texas to re-up with her former boyfriend the term “nuclear family” takes on a whole new meaning.  It was bad enough that father got dumped.  It was worse that she took most of the assets.  Then there was the child support. And now, topping the cake, is the concept that the children should live 2,000 miles away and see their loving father once a month and four weeks in the summer.

Can this happen in 21^st century America?  It does every day.  Part of the reason is that none of the facts recited in the last paragraph really matter a lot.  Custody is not about parental pain.  It is about what is in the childrens’ best interests.  So, how could it be in a child’s best interest to grow up hours away from one parent.  Courts struggle with this issue every day.  And, in so doing, they are not unmindful of how a custody result may be grossly unfair to a parent even though in the child’s best interest.

There is a three prong test employed when one parent proposes to move a significant distance from the other parent taking the children with them.  The test comes out of a 1990 Superior Court case called Gruber. v. Gruber. 583 A.2d 434 (1990).

Prong 1: What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children? Also is the move the product of a momentary whim on the part of the custodial parent?

Prong 2: Does the motivation for the move have integrity and is the reason for opposing the move have a similarly sound basis? and

Prong 3: Are there available realistic alternative arrangements for substitute partial custody or visitation and will such arrangements adequately foster an ongoing relationship between the child and the non-custodial parent?

The initial burden is upon the party proposing the relocation to show the “advantage” to the parent and child.  Each party has the burden with respect to the second prong addressing integrity for the dispute over relocation.

In these cases, past is usually prologue.  A non-custodial parent intimately involved both physically and emotionally in rearing a child presents a major hurdle to that custodial parent who wishes to relocate.  A parent whose involvement has been limited to routine visits and little more may find him or herself in a disadvantaged position.  Courts also examine whether parental conflict over custody issues may make distance an attractive option.  On the other hand there are also cases where a modest level of conflict drives one parent to ask to relocate because “life will be simpler.”  This does not usually make for a successful case.

The most common and most nettlesome area of conflict is over the question of whether relocation “will substantially improve the life of the custodial parent and the children.” There is language in the Gruber case that seems to imply that benefit to the custodial parent may be enough even without palpable advantage to the children.  In metropolitan areas with competitive schools and rich cultural resources, it is sometime difficult to persuade a court that there is an advantage to the child associated with the move.

In recent years there has been a vast increase in this breed of custody litigation.  There are many issues to consider and many reported cases addressing the issue.  But Gruber stands as the seminal case.  The cases decided in the 1990s tended to focus on the benefit to the parent and permit relocation even though a distinct advantage to the child was not often clear.  But in the past decade, the trend has shifted against relocation with recent cases weighing how the children benefit from the move in ways that differ from the happiness of the custodial parent.  One thing remains clear.  People who have already experienced and angst and heartache of separation and divorce do not respond well to plans intended to permit relocation of their children to distant places.

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Pennsylvania automatically gives grandparents the right to file for custody if the parents of the grandchildren are divorced, separated, or if one of the parents is deceased.   

The public policy of the Commonwealth is to provide children with “continuing contact” with grandparents when a parent is deceased, divorced, or separated. 23 Pa. C.S.A. § 5301.  Additionally, Pennsylvania gives standing to grandparents with whom a grandchild has resided for twelve months or longer. 23 Pa. C.S.A. § 5313.

After the grandparents file for custody, the court must determine whether it is in the child’s best interest to have time with the grandparents. Bucci v. Bucci, 506 A.2d 438 (Pa. Super. 1985). In order to obtain custodial time from the child’s parent(s), grandparents need only “convince the court it is in the child’s best interest to give some time to the grandparents.” Bucci, 506 A.2d at 438. The grandparents’ burden is lower than in a custody or partial custody case between two parents because “the amount of time that the child would be away from his parent is less.” Rigler v. Treen, 660 A.2d 111 (Pa. Super. 1995) (quoting Bishop v. Piller, 581 A.2d at 672 (Pa. Super. 1990)). Any time given to the grandparents must not interfere with the child’s relationship with the parent(s).

In determining what is in a child’s best interest, the court must consider the following factors: 1) the physical well-being of the child; 2) the intellectual well-being of the child; 3) the emotional well-being of the child; and 4) the spiritual well-being of the child. Johnson, 589 A.2d at 1160. Courts have previously found that having one more adult to love and care for a child would be in the child’s best interest. Bishop v. Piller, 581 A.2d at 670. Additionally, our courts have considered whether any concrete evidence was produced that there would be a detriment to the grandchild and they have observed that they “cannot overlook the ultimate result that grandparent visitation is beneficial for a child’s development in that it establishes family ties which can continue long beyond childhood.” Commonwealth ex rel. Miller v. Miller, 478 A.2d 670 (Pa. Super. 1984). Often a child’s emotional and intellectual development would be “enhanced through a growing relationship” with his or her grandparents. Id. At the same time courts are ordinarily careful in allocating grandparent visit time to respect the fact that parents are already juggling busy schedules and that parent time with children takes precedence over grandparent needs.

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It seems that the continuing saga of the single California woman who gave birth to octuplets, while having 6 other children at home is akin to watching a car crash.  You really do not want to look, but you are transfixed, watching the damage occur almost in slow motion.

Everyone has an opinion on this matter. There is a saying in the legal community that bad cases make bad law.  I think that this is an example of that truism.  After all, don’t you want to take those children and place them somewhere else?  Don’t you want to shake mom by the shoulders and yell “what were you thinking?”  Wouldn’t you like to find the sperm donor and find out why he agreed to the arrangement and if he feels some responsibility for this mess?  And don’t you want to yank the doctor’s medical license?

These are reasonable responses.  But there is another way to look at these issues.  If you had the legal power to do this, it would not just affect “Octo-Mom”.  It would also affect other women who have children through (anonymous or known) sperm donors.  It might  affect mothers who conceive the conventional way, whether married or un-married.

“What were you thinking” you yell.  Well, who gets to decide how large a family is too large.  Raising a family is not about how much money you have or how many children sleep in 1 bed.  We criticize China for mandating 1 child per couple. The result of that social policy (and that law) resulted in the killing or warehousing of baby girls in China.  Some religions mandate no birth control.  Many people believe that children are a blessing and the more children, the more blessings.  Who gets to decide?  Why?  Certainly there are reasons for concern in this case, but how do you know until octuplets are born, that 8 children will survive a difficult pregnancy.  And would you want a law forcing the selective termination of the fetuses against the mother’s will?

How about the sperm donor?  Laws protect those who donate their sperm or their eggs to people who wish to have children, but who face biological or societal barriers.  These laws were enacted so that people who wanted to have children could do so.  Our national values support having a family and the ability to donate eggs or sperm to an unrelated third party or to a medical facility for someone’s use is protected.  How can we ask someone who did this protected by law to care for children he did not want, in a situation he could not have foreseen?  Or could he?  Should he?  And if we change the laws, does that mean that an adoption or an unexpected pregnancy should tie biological parents together, even if that is not what they want?  And what about the child?

Doctor, how could you not know this was not a good idea?  There are rules governing the best practice in fertility treatments.  Implanting 8 embryos at once is not favored.  And your patient has 6 other children at home.  What were you thinking?  But—why does a doctor get to make the decision.  Do you want your physician to decide how many children you can have?  Do you want your doctor deciding you have too many or too few kids?  Do you want your congressperson, your neighbor, or even your mother telling you how many children it is ok for you to have?

Finally, even if you want that kind of social, legal and/or state interference in deciding the number of children you may raise, what is the punishment for not following the rules.  Do you take the children away?  Don’t children have the right to be raised by their parents, as long as they are healthy and cared for?  Again, who makes these decisions?  Strangers?  Family?  Clergy?  Me?

Until there are good answers, we will just have to watch the spectacle of “Octo-Mom” and give thanks she’s not related to us!

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One of the most highly publicized stories this year concerns the mother who gave birth to octuplets after in vitro fertilization and implantation. She already had six other children which were conceived in the same way.

Legal, medical and social issues were raised by reporters and commentators. The amount of publicity regarding the birth continues to grow. As anyone following the story knows, there are more questions than there are answers.

In this blog, I have written about the many ways to start a family when there are medical issues. The birth of the octuplets raises almost of all them and provides a guide for what not to do.

Legally, there has been nothing wrong. We all have the right to have as many children as we wish. If we cannot provide for them, then governmental authorities may step in after the children are born and if there is proof that their needs are not being met. Several children sleeping in the same bed does not matter, as long as they are being fed, cared for and sheltered. There is nothing to indicate that any of these 14 children will not be cared for, as everyone has said she is a good and attentive mother. The issues of having 14 children is one of values. Some believe that no one should have 14 children; some believe that a single mother should not have 14 children. This is a social norm. For some, having many children is seen as either a duty or a blessing.

From the news reports, mother has used the same fertility group for all her children and had her embryos frozen for this use. Some articles have reported that the practice group’s success rate is below the typical rate for this procedure. As a lawyer, I cannot comment on these facts with any medical knowledge. However, the fact that at least 8 embryos were implanted at the same time is a violation of the profession standards for those medical caregivers who practice assisted conception, even though the standards are voluntary. The question as to whether the doctor should have aided the woman to have more children is again one of personal/moral values. As the treating physician pointed out, the decision is the patient’s, and absent a threat to the mother’s life, may not one for the doctor to make.

The incident is also a learning tool for anyone considering assisted conception. Be mindful that you must do more than check for accreditation/credentialing. You need to research your doctor or agency’s track record. There are many questions that need to be asked and you should have someone with knowledge in the field to advise you of the issues and questions to raise.

No matter how this incident is viewed, it is clear that assisted conception is a wonderful medical tool to aid in having children. As with all tools, care must be taken to use them in the best way possible.

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Appeals to the Pennsylvania Superior Court and the Pennsylvania Supreme Court can delay the final disposition of a matter for well over a year or more beyond a trial court’s decision. While the effect of such a delay upon economic determinations can be dealt with through readjusting financial awards, the effect upon children can have significant, long term implications, particularly where custody of a child is transferred from one parent/guardian to another.

In an effort to expedite appeals involving children, effective March 16, 2009, the Pennsylvania Superior Court will implement new appellate rules governing custody, adoption, termination of parental rights, paternity, and dependency cases. The new rules will be known as the Children’s Fast Track (CFT). Although support cases will not be affected by the new rules, it will be within the discretion of the Superior Court’s Central Legal Staff to submit some limited support matters to the CFT.

The new rules are the result of the Superior Court’s efforts to eliminate unnecessary delay in the appellate process for cases involving children and provide an even more expedited process than the current Family Fast Track procedures. The new rules will only apply to those appeals filed after the effective date. Cases already pending will proceed under the existing Family Fast Track.

Filing deadlines have been significantly decreased or eliminated. Under the new rules, the concise statement of errors complained of on appeal must be filed simultaneously with the Notice of Appeal. The Notice must state that it is a Children's Fast Track Appeal. Practitioners are no longer required to wait for the trial court judge to issue a 1925(b) order requiring the filing of the statement.

In order to allow the trial court to file its opinion sooner, the trial court no longer is required to cite to the transcript, or set forth a detailed opinion. The trial court is expected simply to set forth its reasons for the decision.

Any dispositive motions must be filed within 10 days of the opinion, or the filing of the 1925(b) statement of errors complained of on appeal, whichever occurs later. All brief covers and petitions for allowance of appeal must have the proper CFT designation if the case qualifies. Opting out of the CFT designation is not possible.

The brief scheduling is abbreviated. Instead of 40 days, appellant has 30 days to file a brief. Appellee now has only 21 days, not 30; and, the reply brief must be filed within 7 days, shortened from the previous 14 day time period.

Additional changes are incorporated into the Rules that are not specifically reference in this article. A copy of the full text of the new rules is available www.courts.state.pa.us.

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One residual effect of a divorce action is that a child may have to change schools and interrupt a comfortable and reliable routine and schedule which likely includes their participation in sports and extracurricular activities. And though a majority of parents would prefer their children to remain in their current school and school district, there are times when it is a necessity, either as a product of a new custodial arrangement or parental relocation. Unfortunately for parents and children, particularly high school age children, enrolling a child in a new school and getting him or her involved in extracurricular activities is not always as simple of a process as it would seem.

The Pennsylvania Interscholastic Athletic Association (“PIAA”) is the governing body for the athletic programs of the vast majority of Pennsylvania’s junior and senior high schools. Their job is to regulate interscholastic competition among their member-schools, and to establish rules, guidelines, and criteria for student-athlete eligibility. For kids transferring from one PIAA school to another, or from a non-PIAA school (such as the members of the Philadelphia area’s Catholic League) into a PIAA school, it is necessary that their transfer fulfills the eligibility criteria set forth in the PIAA’s rules. It may be necessary for the child to apply to the Pennsylvania Interscholastic Athletic Association (“PIAA”) to confirm their eligibility and participation in an interscholastic sport at their new school.

For those activities under the jurisdiction of the PIAA, it is important for the child’s parents, particularly the custodial parent, become familiar with what is required of them by the PIAA. The PIAA addresses the issue of children who transfer due to their parents’ separation and/or divorce in Section 2(C) of the 2008-2009 PIAA Rules and Regulations. Parents should also speak with school administrators from the old school and the new school as early as possible and obtain a certification from them indicating that the transfer is not “materially motivated in some way by an athletic purpose” (emphasis added) – a broadly defined phrase that will draw an immediate rejection from the PIAA. By exploring and obtaining the necessary prerequisites, a parent can effectively resolve any issues related to their child’s transfer and make their transition into their new school as smooth as possible.

If a student has had their eligibility denied or is involved in a particularly contentious custody battle which has, unfortunately, seen him/her transfer back and forth between schools, the student may have to appear before a Regional Panel or District Committee and have their eligibility reviewed. Such reviews are quasi-judicial hearings in which the student and interested parties may offer testimony or other evidence in support of the transfer. Again, the PIAA’s emphasis is on preventing transfers for an athletic purpose, but unfortunately, the tell-tale signs of “team shopping” mirror changes in custodial arrangements. It may be difficult to believe, but it is not uncommon for ambitious parents to “separate” and for one to move into a new school district for the purpose of enrolling their child in a particular sports program.

Having had experience litigating issues related to student-athlete transfers and PIAA eligibility, despite the best intentions of the PIAA, I have seen how this process can be difficult to navigate for families and create some unintended consequences. This is particularly true for families in split custody situations, since the PIAA has a history – not without valid reason – for closely scrutinizing situations where a child’s primary residence switches to the non-custodial or “other” parent. It is strongly encouraged, therefore, that school transfers between split custody parents’ residences are accomplished as early as is feasible and the parents proactively seek to have their child’s eligibility approved in advance of the school year and/or sport season. The worse case scenario is if a child enrolls in one school, has their eligibility denied, and in their attempt to participate in sports, transfers back to their old school. Technically, this scenario falls under the PIAA’s interpretation of “athletic purpose” and could result in the child being declared ineligible for the year. For the sake of the child, it is critical to avoid this outcome and that parents be prepared to appeal any adverse decision by a PIAA district committee.

Sports and extracurricular activities can be extremely useful tools in helping a child adjust to their parents’ divorce. Parents owe it to their child to address relocation issues in a timely way and make the transition into a new home, school, and custodial arrangement are as minimally disruptive as possible.

More information related to the rules, regulations, and requirements of the PIAA can be found at www.piaa.org.

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Last month, I blogged about starting a family the old fashioned way in the face of infertility and/or other impediments. Adoption, whether domestic (US) or foreign, is the most popular way of starting a family when biology fails us.

As technology grows, Assisted Conception has grown to be a viable option. There are many choices, depending upon the reason these methods are chosen. The choices and the reasons for these choices must first be a medical decision between you and your doctor. As a lawyer, my comments are limited to the legal implications of those choices.

In Pennsylvania, and in most other states, a woman need not put a father’s name on the birth certificate. In vitro fertilization, where the husband and wife’s egg and sperm are used, fertilized outside of the womb, and the embryo implanted back into the woman, is treated as a natural birth.

If artificial insemination has been used to achieve a pregnancy, the sperm donor may be anonymous. Most, but not all sperm donors donate to a medical facility only if their identity is protected. A competent medical facility will have a social and medical profile of the donor and will have the receiving woman also agree to the guarantee of anonymity. If the woman is not married, the child has one parent. States may treat the woman’s partner differently. It is not uncommon for married couples of different sexes to keep the impregnation secret and to have the husband’s name put on the birth certificate.  However, this is not a good idea in this era of DNA and internet issues. The same-sex partner or the husband is free to adopt the child in most states. From a lawyer’s point of view, this is the preferred method of proceeding.

In some cases, close male friends may volunteer their sperm to a woman. If this is the case, the sperm donor can be held liable for child support and may seek custody, no matter what the donor and donee agree, as there is no guarantee of anonymity. The support obligation and the right to custody last until the child is emancipated, usually at the age of 18 after graduating from high school. However different states have different rules.

Using an anonymous egg donor is also possible. Again, this method is most like artificial insemination, with the donor’s identity protected and the resultant pregnancy treated as though it was achieved through sexual relations.

Surrogacy is also an option. In gestational surrogacy, a third party female, carries the fetus for a couple. In this case, the surrogate and the child are NOT biologically related. Most frequently a surrogate in this arrangement is a close relative or close friend. Sometimes the surrogate is located through an agency or through an advertisement. In Pennsylvania, surrogacy arrangements may be allowed. However, you must carefully check the agency, the doctors, and the lawyers involved to make sure they are experienced, insured and specialize in this area. Questions of genetics, diseases and disasters must be anticipated and ruled out before you commit to these arrangements. If you do your homework, this is a viable option. In Pennsylvania, there is a procedure to ensure that the birth certificate carries the biological parents’ names, and not the surrogate’s. This should be taken care of by your lawyer prior to the birth.

Another option is to use a surrogate and her egg. The same issues as in a gestational surrogacy must be addressed, but here the birth is usually similar to an adoption, in that the surrogate’s parental rights need to be ended after the birth.

In all surrogate arrangements, the legal and medical issues are complicated. There is a lot of information on the internet, but each state treats these matters differently. The genders of the couple or the single parent, the ages, physical and financial health are only some of the issues that need to be examined. Never rush into matters, always consult first with your physician, and then with your own lawyer.

There is nothing better than beginning your family. We hope to help make it a wonderful experience for you.

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It is fairly common for clients to want to build a custody proceeding around the fact that a son or daughter has enunciated a preference toward one parent or the other. A fairly common question posed to attorneys is: How old does my child have to be before he or she decides with whom to live? The answer does not involve any bright line test. It is for the judge deciding the matter to determine what weight to give to a child’s preference. Moreover, the preference has to reflect considered thought on the part of the child and all other surrounding circumstances to have real weight. A fifteen year old child may love to live with the parent who permits him to do homework when he wants and go to bed when it suits him. That is the child’s preference but not in his best interests.

So how old does Junior have to be? The fact is that even small children (ages 7-10) can communicate “problems” they perceive in a custodial arrangement. They can describe their diet, their environment and can sometimes describe frailties in a parent. In terms of helping a court to make a choice or articulate the merits of life with one parent versus another, you are wasting your time and money unless you have one of those children who will go to college at fourteen years of age. Children who are eleven and twelve usually can help a judge to assess relative merits but they are often very reluctant to impart those closely guarded views and they are acutely sensitive to the fact that words of preference are going to “leak”. Often they will tell you that they prefer life with you while telling the other parent that they prefer life with that parent. They also have a strong penchant for what is “fair” and “fair” often means equally shared custody. Many parents take a case to trial based on hearing what they want to hear from their youngster.

What happens when a child is called to court to testify. Except in rare circumstances, judges will interview these children outside their parents’ presence. It is in the Court’s discretion to decide whether parents may witness the testimony. But, it is equally clear based upon the rules of court and a recent Superior Court ruling in Ottolini v. Barrett, 954 A.2d 610 (Pa. Super. 2008) that the attorneys for the parents have a right to be present when the child is interviewed and to question the children. Many judges openly discourage this. The rules also require that any interview of a child be transcribed by a court reporter and made part of the record. Judges also are wary of doing this because it means the parents will be able to read the interview in transcribed form and, inevitably tell the child how disappointed that parent is in what the child said.

In an effort to avoid this embarrassment it is not uncommon for counsel to stipulate to permit the child to speak with the judge alone and to do so without a court reporter. This takes the pressure off the child but does leave the parents and counsel to wonder what was really said. As the client, this is your choice to make and one that should be fully explored before the interview takes place. The logistics for the child need also be addressed. Nothing angers judges more than to see children of any age waiting in courthouse hallways surrounded by warring parents and family members while waiting for their moment with the judge. The better route is to have counsel schedule a specific time for the child interview and arrange for the child to be in school or camp until the appointed hour for the interview. Once over, judges want to see the child sent back to someplace like school or camp where the pressure is off.

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I frequently blog about custody issues. However, at the start of the new year, I thought it apt to blog about beginnings, especially beginning a family.

Many people want a child to raise and love. That desire transcends race, age, marital status and gender issues. Although the law is slow to follow societal changes, it eventually gets there. The areas of single or same-sex adoptions, as well as of scientific help to have a child are still areas in flux. So too is the law. Different states have different legal schemes. We will be guided by Pennsylvania’s in this blog. However, it is important to consult a lawyer in your state before starting legal proceedings.

Starting a family in the traditional way means having sexual relations between a man and a woman with the result of impregnating the woman. No marriage is required. Love is not a necessity. However, the child resulting from this physical relationship is the child of the man and woman—in the absence of any subsequent act to change the relationship. In Pennsylvania, parents have an obligation to support their child. It is unequivocal and is the child’s right. Therefore, no matter how loving or brief the coupling that produces the baby, both parents are required to support that child until the child turns 18 AND graduates from high school.

When the child is born, a form will be filled out ( in PA, a Registration of Live Birth) identifying the mother from which the child was just delivered. Usually the father is identified, but not always. With DNA testing, a father can be identified with great certainty—or ruled out with the same certainty. The hospital sends the form to the state department of vital records and a birth certificate is issued. The child’s parents are now legally identified. In the best of all worlds, mother father and child will be bonded and thrive. The parents will care for and raise the child and all will live happy lives. If the parents cannot raise the child, the child may be placed for adoption through an adoption agency or privately. Because so many infertile couples want to adopt a newborn, there are few available through agencies. Hence, more and more foreign adoptions occur.

 Frequently, once it is known in the community that a newborn will be available, there are many people wishing to adopt. In an “open adoption” the biological and the adoptive parents know each other’s identities. In a “closed adoption” the identities are kept secret and only the lawyers, the agencies and the Court have that information. Sometimes a Court Order is necessary to open sealed Court records, when certain information is needed in a closed adoption.

Different states have different laws, and different agencies have different guidelines about who is eligible to adopt. Sometimes a single parent is not favored; sometimes a same sex couple is not favored. Age, income, religion and ethnic background may all be mandated by private and/or public agencies.

At the end of what can sometimes be a very long process, an adoption takes place. This is a legal proceeding, in which a Judge terminates the biological parents’ rights and then, after inquiry, issues an adoption certificate. No adoption can take place until both parent’s rights are terminated—unless it is a step parent adoption. In some places these two proceedings are held at the same time. In others, there are 2 separate Court appearances. Once the adoption has been consummated, the certificate is sent to the state’s vital statistics office and a new birth certificate is issued. That new certificate looks exactly the same as if the child had been born in a hospital to the (adopting) parents! So too, the legal relationship is exactly the same as though this were the biological child of these parents. All obligations (support, etc) and rights (inheritance, etc) are the same. And the new family is born!

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I handle a lot of custody matters. At this time of year, families where the parents and/or grandparents are not living together have similar and stressful issues. Everyone wants their child’s holiday to be a happy and memorable one. After 2 decades of working with children and families and after consulting with child psychologists about what children need, I’ve learned a few things that might be helpful for you and your children.

First, the holiday cannot be and does not need to be perfect. What it needs to be is a day without fighting, without guilt and without fear. Assure your child that there is more than 1 way to celebrate a holiday and that the more people and places he/she celebrates with, the more ways there will be to have fun. If you celebrate Christmas and you have little ones, assure them that Santa knows where they will sleep on Christmas Eve and where they will be on Christmas Day (or any other day they celebrate with their other families).   After all, if Santa is smart enough to make his reindeer fly, he is smart enough to find each and every little boy and girl.

Second, especially if this is the first year in separate households, help your child decide how to celebrate the holiday. Help suggest new ideas or traditions that will make it a very special time. If in the past, the children always helped make cookies, maybe this is the year they learn how to decorate candles. Also, help them pick out gifts for the parent and grandparents, aunts and uncles who are no longer part of your celebration. Celebrate your child’s family!

Finally, no fighting with your ex. This is the season to model the behavior you want your child to learn. Walk away from the taunts. Become deaf to the threats. Act as if there is nothing more important than being happy and serene. If you act that way, there will be no one for others to fight with.

The holidays are not a Bing Crosby movie. They are not even about locating the Grinch and taking him down. They are about giving your child the chance to enjoy family without worry or fear. And isn’t that the best gift of all?

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There is nothing worse than being in a legal battle regarding who gets to see and care for your child(ren). Usually the battle is with the other parent, but sometimes it is with a grandparent or other family member, or a local child welfare agency. No matter who is involved, this case will make you scared, angry and sometimes feeling completely out of control. Your custody lawyer can help you only if he knows all there is to know about you, your children and the other people involved in the case. You can help him help you by giving him the following information:

Key people. The contact information for

                Child’s doctor, dentist and other medical providers

                Child’ teacher this year and past year(s)

                Child’s principal and school counselor

                Caregivers, i.e. babysitters, child care teachers

                All people living/frequently staying at any place child stays

                Concerned neighbors

                Child’s friends/ friends’ parents

                Supportive family members

Schedules

                When child is with you

                When child is with other parent

                When child is with other caregivers

                Telephone logs/calls to other parent

                School

                Camp

                Child care

                Doctor/dentist visits

Documents

                Medical records (3 years)

                School records (3 years)

                Calendar of all visits/calls you have with child

                E-mails, letters to and from other adults regarding custody, well-being of child

Litigation

Information and documents regarding this case and any other custody, divorce or abuse action involving you and/or the other people in this custody case.

In preparing for a custody case it is important that you keep a written record of all visits/communications you have with or about your child and with the other parent or party. Your lawyer and/or your doctor may recommend hiring a child psychologist to do one of the following:

                Treat you

                Treat your child

                Perform a custody evaluation

                Assist you and the other parent in learning how to co-parent

                Teach you about your child’s development and needs at all stages of the child’s growth.

The process is long and daunting. With effective communication between you and your lawyer and with focus on what is best for your child, you may be able to resolve the matter at hand.

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Judy McIntire Springer, a partner in our Philadelphia office, blogs for The Legal Intelligencer. 

Read her July 29, 2008 posting, Moving Back to the United States from Abroad on habitual residence and its implications for international child custody decisions.

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As a family law practitioner, I find custody cases in which one parent seeks to relocate with the children the hardest to predict and I have heard from numerous others, including judges, that I am not alone in that sentiment. The only consistent outcome in relocation cases seems to be that the losing side will likely appeal the trial court’s ruling.

Father, in Hogrelius v. Martin, 2008 PA Super 111, did exactly that, appealing the trial court’s decision to allow Mother to move from Chester County, Pennsylvania to McLean, Virginia with the parties’ child. The finder of fact, in relocation cases, must consider three factors as part of its analysis of whether the move with the child is in the child’s best interests. Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990). 

Essentially, the court must consider:

1. The potential advantages of the move and the likelihood that the move would substantially improve the quality of life for the child;
2. The integrity of the motives of the parent seeking to move and of the parent opposing the move; and
3. The availability of a realistic, substitute visitation schedule. Id.

Mother argued that the move to Virginia would significantly better the parties’ child’s life as Mother intended to move into an affluent neighborhood with her fiancée. Mother claimed that with her fiancée’s income, which exceeded Mother’s and Father’s income greatly, Mother intended to provide the parties’ child with opportunities to which the child would not otherwise have access. In addition, Mother offered to transport the child to and from Virginia every other weekend to visit Father and to allow Father increased visitation with the child over the summer and during the child’s vacations from school. 

Father claimed that Mother’s desire to move was based on a whim, as she had met her fiancée on the internet and did not have a stable relationship with him. In addition, Father argued that Mother’s fiancée’s income did not provide enough basis on which to allow Mother to relocate. Finally, Father expressed his opinion that no adequate substitute visitation schedule could be created once the child was living in Virginia.

The trial court agreed with Mother that her proposed relocation was in the child’s best interests and allowed Mother to move to Virginia. Father appealed and the Superior Court affirmed, finding the child would benefit from living in a better neighborhood, attending a better school and having the opportunity to participate in activities paid for by Mother’s fiancée. 

Hogrelius is another example in a long string of appellate cases involving relocation where I could imagine the outcome going either way. Perhaps this inability to predict such cases is exactly the reason they are so often appealed.

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Judy McIntire Springer, a partner in our Philadelphia office, has written two excellent posts on International Custody Issues and litigating under the Hague Conventions for the Legal Intelligencer Blog.  

To read the first of the posts, click here.

To read the second of the posts, click here.

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In cases where one parent has removed a child from one country to another country to prevent the other parent from exercising custody, the Hague Convention and the Uniform Child Custody Jurisdiction Act (“UCCJA”) govern international custody disputes so long as the countries involved are signatories to the Hague Convention. The Hague Convention prevents a parent from wrongfully removing or retaining  child from his or her “home country” to prevent the other parent from exercising custody. When a parent (the “respondent”) has wrongfully removed a child and crossed international borders, the other parent (the “petitioner”) may file an application for the child to be returned to the child’s home country under the Hague Convention. The petitioner’s Hague application is solely related to the jurisdiction of the custody case. The court will not look at the best interests of the child to determine if the child should be returned.

A quick overview of a Hague case follows: to prevail on his or her application, the petitioner must establish the date the removal took place, that prior to removal the child was “habitually resident” in the petitioner’s home country, that the child’s removal/retention breached the petitioner’s custody rights, and that the petitioner was actually exercising custody when the child was wrongfully removed/retained. 

If the petitioner establishes his or her prima facie case, then the respondent has the burden of proof to rebut the petitioner’s prima facie case or establish a defense. Rhe defenses include the “well settled defense” (which does not apply if the Hague application is filed within one year of the wrongful removal/retention), that the petitioner consented to or acquiesced in the child’s removal or retention, that a “grave risk” of harm or “intolerable situation” exists if the child was returned, the mature child’s objection to the return, or that the child’s return would violate public policy.

If the petitioner establishes his or her prima facie case, and the respondent fails to rebut the petitioner’s prima facie case or establish a defense exists, the child must be returned to his or her home country.

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My client calls me and says "I can't get him to agree to anything.  I feel like if I say 'black', he says 'white', just because.  The kids are suffering.  What should I do?"

I always advise my clients to take the high road when it comes to their children.  What does that mean?  Examples would be:

• Don't talk about the other parent negatively in front of the children.
• Never talk about money in front of the children.
• Do whatever you need to do to keep the children out of the middle.
• Never make the children messengers.
• Don't question the children about what goes on in the other parent's home.

These types of things may seem obvious to most readers, but you would be surprised what I see children go through.

I was discussing a case with a psychologist recently, who advised me to have my clients "put some goodwill in the bank for later".  I asked what she meant, and she explained that if my client would give in on some issues, maybe ones that aren't so important to my client, but which are important to the other person, maybe the other parent would see that as the offering of an olive branch and give in on an issue or two later.  Even if it didn't work, the client would feel like she tried, that she took the high road, and the children will benefit from that.

Last thing - I have a mantra with my clients when they complain about the other party, and say that they can't believe they were ever married to that person.  I always remind them that they have children they wouldn't trade for anything in the world, and but for that other person, they wouldn't have those children.  It always makes them take a step back and think.

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In December, 2007 I blogged on the issue of having a child through surrogacy or adoption. In that blog, I noted that the time in which biological parents can challenge their consent to adoption is quite long in Pennsylvania. Recently, the Pennsylvania Superior Court issued a new opinion which shortens the time period by interpreting the law in a stricter fashion. This latest look at existing Pennsylvania adoption law requires all challenges, except for fraud and/or duress, to be made by the biological parents within 30 days of their signing a consent to adoption. There is no exception for technical errors in the drafting of the consent. Further, any challenge to the Consent because of fraud or duress must be made within 60 days. If courts strictly construe these time frames, as the Superior Court now has done, Pennsylvania adoptions will not be challenged as much as they once were.

These concerns arise in private adoptions much more frequently than in agency adoptions. However, it is still true that the overwhelming majority of all adoptions proceed without any problems. 

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If a custody case is not scheduled for trial within 6 months of the complaint, or praecipe of a party, it will be dismissed. Dietrich v. Dietrich, 923 A.2d 467 (Pa. Super. 2007).

As family law practitioners, we are often waiting long periods of time for our custody cases to be listed for trial. When asked by clients when we think the trial will occur, we can only guess. In some situations, the time delay may help a litigant; in other situations, its may severely hurt.

Recognizing the timing issue, in 2000 the Pennsylvania Supreme Court adopted Pa.R.C.P. 1915.4, which requires scheduling of a custody trial within 180 days of the filing of the Complaint or Praecipe of a party. Initially, although courts were cognizant of the scheduling pressure place upon them, this Rule received little fanfare.

However, based upon the recent ruling in Dietrich, and the strict interpretation of the Rule by our Superior Court, this Rule can now be used as a weapon for dismissing a custody action. For example, if representing the party who is satisfied with the status quo, the practitioner may not be in a rush to trial.  Conversely, if representing the party seeking modification or an initial order, practitioners must be mindful of trial scheduling to avoid dismissal of their case.

Whether used as a sword or a shield, family lawyers must be aware of the implications Pa.R.C.P. 1915.4 can have on their custody case in light of the Dietrich decision.

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As Spring Break and the summer approach, you may want to think about your travel plans if you are separated or divorced from the child's other parent.  If you already have a custody schedule in place, you should make sure that you abide by the terms of the Agreement, which oftentimes includes giving notice to the other party in advance and providing your travel and contact information. Additionally, if you are going to travel abroad, you should think about how to secure a passport for your minor children. The rules changed as of February 1, 2008, so that while they used to apply to minors under the age of 14, the rules now will apply to minors under the age of 16. The following link lists the information that you will need to bring with you to obtain a passport for your child: http://travel.state.gov/passport/get/minors/minors_834.html#

You will not be able to secure a passport for your minor child if you do not have the other parent’s permission. If the other parent cannot/will not go with you to apply for the passport in person, you will need the other parent to sign and notarize a consent form for the passport. The consent form is on the state department's website at the following link: http://travel.state.gov/passport/forms/ds3053/ds3053_846.html

Additionally, once you have travel plans, you need to have a notarized consent form from the other parent that you can leave the United States with your child. This will ensure that you do not have any trouble at the airport.

Although it sounds complicated, if you plan ahead, you will be able to ensure a relaxing trip with your child!

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For good reason, most people have concerns about their children during their divorce proceedings.  No parent wants their child to be affected by divorce, so here are some tips from a divorce attorney’s perspective to help minimize the effect on your children. 

1. Remember that your spouse is your children’s mother or father. This will help put things in perspective – even though you no longer have a relationship with your spouse, your child has a right to that relationship. One of the things we always remind clients is "but for that person who right now you detest, that beautiful child who you would not trade for anything in the world, would not exist".
2. Never speak badly of your spouse. Children are adept at recognizing the undertones of your comments, and any negative inference regarding their mother or father by you could alienate you and your child. 
3. Never let money affect your relationship with your children. Your relationship with your child is independent from the finances, whether you are paying or receiving child support. 
4. Do not send your spouse notes/information through your child or your child’s backpack. This is a small part of putting your child in the middle, and it will only get worse. In this age of technology, e-mails are an easy, appropriate and private way to communicate directly with your spouse, so that the children do not have to be involved. (Although remember to be careful what you write in your e-mail – see Charles J. Meyer’s blog dated April 20, 2007). 
5. Be reasonable. I am a firm believer that even if your spouse is not reasonable that, in the long run, you will be better off if you are reasonable.  Your children will recognize it, and if it comes down to it, the court will recognize it.

There are lots of resources for parents these days to help with their children during and after divorce – books, psychologists, co-parenting counselors, etc.  If you need to do so, utilize the resources available to you.  And of course, you can always ask your attorney’s opinion.

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You are a lawyer who is getting calls from your client on every detail of his custody schedule.  Or you are a parent, and you and your former spouse can not agree on even the most minor issue of the custody schedule.  If you fit into either of these categories, a Custody Parent Coordinator may be very beneficial in the situation. 

Some examples would be:

• “The kids were supposed to be home at 7:00 P.M., and it’s 7:35 P.M., you’re late – again – see you in Court.”
• ‘What are you doing here – it’s my turn to come to the basketball practice – quit bothering me or I’ll see you in Court.”
• “How could you leave our child alone at your house while you ran to the grocery store, she’s only 12 – we’ll see what the Judge says about this.”
• “I paid for the school pictures, why did you take them out of his backpack – I’m filing a petition.”

Does any of the above sound familiar?  If so, you are not alone.  Many families struggle with issues such as these even after they have negotiated or litigated a custody order.  Until recently, the typical way to resolve such disputes was to file a petition for contempt or to modify the custody schedule.  And, depending upon what county you live in, resolving these issues could take anywhere from four weeks to over one year. 

About one year ago, a Bucks County Judge had such a “frequent flyers” case where the parents found themselves in Court time and time again to resolve minor disputes. The Court dismissed a petition that requested that the Court determine how far each parent should drive to a midway point for pick-ups and drop-offs. The Court's opinion stated that the its function was not to resolve such minor details of a custody situation and that parents should resolve these issues outside of the courtroom.

Since then, the position of a Parent Coordinator has truly emerged.  A Parent Coordinator can be a psychologist or a lawyer, as typically these professionals are experienced in dealing with high conflict families.  A Parent Coordinator may be appointed by the Court to:

• Assist the parties in resolving issues arising out of the custody order through consultation with and the educaton of the parties;
• If the parties cannot agree upon a resolution of their conflict, then the Parent Coordinator has the Court’s authority to resolve a dispute by issuing a binding decision to the parties.

A Parent Coordinator works directly with the parties outside of the courtroom.  In many cases, Parent Coordinators work with clients through e-mail, telephone or in-person conferences.  The Coordinator’s function is not as a therapist.  Typically, the parties share the cost of the Parent Coordinator in a fair way, oftentimes in proportion to their income.  Decisions by a Parent Coordinator are appealable to the Court.

Parent Coordination is a new function of Family Court, and one that is being welcomed by many judges, lawyers, therapists and families.  It is a less expensive alternative then proceeding to the courthouse each time a minor dispute arises, and provides a quick result for the parties.

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Contested child custody matters are the most legally and emotionally difficult matters to be dealt with in family law.  They certainly are the most difficult to resolve - costly, contentious and complex. An amicable resolution is generally not common. 

These matters are made all the more difficult with allegations of child or sexual abuse by one party against the other – especially, when they are made without foundation. 

What do you do when your client has been falsely and unfairly accused of child abuse? 

The case certainly takes on a different tone and direction – a direction which a divorce lawyer cannot control due to the involvement of a county or state agency, usually known as "Children and Youth".  It is most difficult to meaningfully participate in such a process that is usually secretive in nature. It is not unlike the grand jury process.  However, in these matters, there is no jury; and, the fact finder is usually a police officer, social worker or agency. 

Quickly, Domestic relations law evolves into criminal defense with allegations (not evidence) of wrongdoing generally being made by one hostile parent against the other.  The factual basis for these allegations is generally not predicated upon tangible evidence, but merely upon suspicions and emotions which bleed over from the divorce into the custody case. 

Nevertheless, these allegations have profound consequences to both parties, let alone the child involved.   As a divorce lawyer, how do you advise your client? 

• Do you tell him/her to (not to) participate in these proceedings?  Or, advise him/her to just let these proceedings take their course.  
• If you or your client calls the investigating authority, does it heighten its/their inquiry?  Or, does meeting with the investigating authority and your client limit the inquiry and its consequences? 
• Do you advise your client to take a polygraph test?  What are the consequences? 
• What about the complaining witness?  If the charges turn out to be unfounded, do you drop the matter or do you take affirmative action against the opposing party for slander, etc.? 

None of these are very good options. If you choose to go “quietly into the night” and not fight back, remember that attacks on reputation (even if shown to be false) may carry a membrane of suspicion, forever.   And, let’s not forget the child – a victim either way.

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The urge to have children is very strong for many people, whether couples or singles.  The urge is not restricted to people in a committed relationship or couples of different genders.  When the “old fashioned way” won’t or can’t work, adoption or assisted conception are the other options.  There are many things you need to be mindful of.  Some of them are as follows:

ADOPTION 

In almost all states, private adoptions are difficult.  Adoption agency arrangements can give you some protections, but there are long waiting lists.  If you look in most newspapers’ want ads, you will see ads from couples who desperately want to adopt.  There must be consents from both mother and father.  In Pennsylvania, neither parent can consent until after the child is born.  Additionally, in Pennsylvania and in many other states, adoption is a 2 step process, requiring a home-study report, criminal and child abuse clearances, and a termination hearing several months before the adoption hearing.  It is important to be assured that the man signing the consent is indeed the father of the child.  Both parents have the right to change their minds even after signing the consents, so there is a lengthy and tense period before finalization.

Foreign adoptions have become much harder.  Again, adoption agencies can facilitate the process.  As with domestic adoptions, it is vital to make sure you are using a well-known and respected agency.  US immigration laws define the circumstances in which a foreign child can be brought here.  This is a minefield for people without an agency or experienced lawyer.  For example, the US defines an “orphan” as a child who does not have both parents.  Other countries may define an “orphan” as a child that only has 1 parent.

ASSISTED CONCEPTION   

Many doctors have practices where they will use donated sperm, eggs or both and facilitate conception in a uterus or in a test tube.  Sometimes another party (a surrogate) will carry the child for a prospective parent(s).  Each state has different laws regarding these arrangements. 

There are many, many areas where problems can occur.  Some examples: a genetic disease that was not tested for; a surrogate who will not give up the child; eggs or sperm that carry diseases; exorbitant fees; intended parents divorcing or changing their minds; known sperm donors who must support the child even though they were promised no liability. This is only a partial list. As with adoption, it is vital to consult an attorney experienced in these matters and to use a well-respected physician and practice. There are many people out there who hold them selves out as able to arrange these practices, but who are not legally or medically qualified to do so.

Because the desire to have children is so great, many people do not take the time to get appropriate legal advice. It is important that they do so, for if things go wrong, it is not just a matter of money, as the impact of a failed adoption on a family can be devastating.

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No, this is not about Brittany Spears, but it is about how courts determine custody arrangements between two parents who cannot agree.

The legal determination that a court must make is what is in the best interest of the child. This gives the court a lot of power and each custody case is different because each child and each set of parents are different. If you want to know how to lose custody—read all about Brittany.

If you’d like to improve your chances of having a lot of time to spend with your child or children, try everything you can to co-operate with the other parent and NEVER speak badly about that person when your child is around.

When these things do not work, the court will want to know about your rules for the child. No rules—no primary custody. Your job is to parent your child, not be her/his best friend. Along these same lines, the court will want to know how often you meet with the teacher, take your kid to the doctor and dentist, and how many activities and sports events you attend.

The court will also want to know if your schedule will help your child maintain his/her activities and friends, or whether it disrupt the child's schedule. The court will want to talk with your child, but not to find out where the kid wants to live, but rather what kind of kid this is and how happy/unhappy this child is as a result of having to go to court because the parents can’t reach an agreement.

Helpful witnesses for you would be people who have seen you interact together and have no bias. Your mother will always lie for you. Teachers, coaches, neighbors and therapists will not. 

The best way to win a custody battle is to stay out of court.  One day your child will be old enough to decide what she/he wants to do every weekend. That’s when fairness, love and compromise pay off!

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At the core of Pennsylvania custody law is the concept that courts should seek to promote the best interests of the children involved. In the past, courts have been reluctant to grant equally-shared physical custody of a child in an effort to provide a more constant, regular home life for minor children. Recent trends indicate, however, that Pennsylvania courts are becoming more likely to grant shared and 50/50 physical custody as a method of adapting to the realities of modern families in which both parents may be working outside the home.

The factors that the court must consider in any custody case are set forth in the Divorce Code (at 23 Pa.C.S.A. §5303) and are as follows:

1. the child’s preference;
2. all factors which legitimately impact a child’s physical, intellectual and emotional well-being;
3. which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the child and the other parent;
4. each parent’s qualities;
5. the qualities of adult household members living with the parent;
6. past abuse or violent conduct; and
7. criminal convictions.

Additionally, the following are some of the critical factors revealed in Pennsylvania reported cases dealing with requests for 50/50 shared physical custody:

1. The existing division of child care responsibilities between the parents and whether one parent has been the primary caretaker;
2. The nature and extent of the child’s bond with each parent;
3. The ability of the parties to co-parent with one another;
4. The proximity of the parents’ homes (and if they live in the same school district);
5. The benefits to the child from having day-to-day contact with both parents;
6. How much time the child spends in day care (before and/or after school care);
7. The child’s age;
8. The parties’ respective work schedules;
9. Other members of each parent’s household; and
10. Whether the child has any special needs.

The foregoing list is certainly not exhaustive, but highlights the child-centered inquiry, as opposed to fairness to the parents for custody time. As each custody case is judged on its own set of facts, it is vital to give a court the specific facts of each situation in the context of what is best for the children.

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Here’s a dilemma – the custody agreement says “primary physical custody to dad”, but mom has the child 9 out of 14 nights in every two week period. What should a court do when dad files for support, based upon the language in the agreement saying he has primary physical custody?

Although not directly on point, our Superior Court has held, in Riley v. Foley, 783 A.2d 807 (Pa.Super. 2001), that where an order provided that father was to have shared physical custody based upon certain conditions precedent, even where those conditions existed, if Father did not actually have the child in his custody, he was only entitled to a credit against his support obligation when the actual schedule went into effect. In Riley, the court order provided that father would have the ability to have a fifty percent (50%) custodial schedule with the children if he moved closer to the mother. Father moved, but Mother refused. After a hearing, custody was changed to an equally shared physical schedule.

However, in calculating support, the trial court order gave father a credit from the date the condition precedent was fulfilled, i.e. the date he moved closer to the mother. However, on appeal, the Superior Court reversed, noting that actual shared custody must occur for the credit to be given to the father.

Interesting that basically mother’s contempt in Riley made her some money.  Based upon this case, In our example, mom should receive support notwithstanding the “primary physical custody” language in the agreement. But will she?!

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A recent article in the Philadelphia Inquirer addressed the issue of a soldier who went to war in Iraq, to defend our country, but when she came back to the United States, a family court judge ruled that it was in her child's best interests to remain in the custody of the child's father.  This is the saddest of issues for all involved.  And apparently, it is not uncommon.

What a dilemma!  Our soldier has answered the call to duty.  The other parent has taken on the huge responsibility of being a completely single parent.  The child, obviously our focus, has lost a parent for a significant period of time, and maybe had to change schools and make new friends.

And i even feel badly for the judge who is being asked to make a decision as to what is in the child's best interests when the soldier returns. 

My first thought was that I was sympathetic to the soldier, who had sacrificed so much to protect our freedom.  But then I thought about the others involved, and realized that this is a sad situation for everyone.  And obviously one which will need to be decided more and more, and on a case by case basis.

Click here to view the full article.

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Let the lesson be learned: In this day and age of technology, what you say, in whatever format, could be used against you later.

This morning's news story relating to Alex Baldwin's voice mail message to his daughter, who I believe was reported as being 11 years old, should be a lesson to every person going through a divorce and to every person who may now or in the future have a possible custody issue.  

While many states have laws limiting the recording of conversations, whether in person or on the phone (and you should consult an attorney about this issue before ever attempting to make such a recording because it could be a crime), if a person voluntarily creates a recorded message or statement, whether on a voice mail system or by sending an email, the statements made likely are admissible in a court proceeding. 

I tell my clients all the time to be very careful in emails.  In many situations I also ask to review many emails before they are sent.  Finally, I have clients keep every email, in bound and out bound, so that I can review them prior to hearings and make sure there are no surprises waiting for me in the courtroom.

If the recording of Alex Baldwin is accurate, it is wrong on so many levels.  Even if his allegations are true that his former spouse is attempting to alienate his child from him, it is up to him to take the high road and keep his daughter out of the middle of, what should be, an argument between the adults. 

Think before you speak and before you write.  That is the message for the day.

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As the media outlets have reported, we all appear to be fascinated by the death of Anna Nicole.  It’s like a horrible car accident on the highway:  we don’t want to look, but we can’t help ourselves.

In any event, things can be learned from this case, including:

• Update Your Will.  Anna Nicole’s will was dated.  If she had updated it, the courts would have had a much better idea of how she wanted her affairs handled after her death.
• Who Gets the Kids?  It is important to make a clear declaration as to your wishes with respect to who should care for the children in the event neither parent is alive. 
• What's Going to Happen to You?  Do you want to be cremated or buried?  Where do you want to be buried?  Make your wishes clear as to what is going to happen to you after you die.

It is so difficult to face your mortality.  But failing to do so could make your death even more traumatic for your loved ones.

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It's holiday time and that means that all of the domestic relations lawyers I know are dealing with holiday custody issues. 

For those of you who may be in a frustrating situation, my only comment is to remember that all holidays, and especially Christmas, are for the children, and to keep that in mind when trying to figure out how to handle disagreements over the custody schedule during this hectic time.  Think before you speak, put the best interests of the children first, and remember that there are 365 days in each year, and that a few hours or one day here or there are not going to change your life, and especially won't change the lives of your children.

Do your best to make this a happy, safe, peaceful holiday season.

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Recently I have had a lot of conversations with other practitioners regarding where courts are going on the subject of Shared Physical Custody.  Interestingly enough, more and more judges seem to be starting cases with the question: "Why shouldn't I be entering an order for shared and equal physical custody".  In more and more families, both parents are working. And with children being so "scheduled", one parent just can't do everything.

Factors which I have found are looked to by the Courts in deciding this issue are:

1.  Whether the parents live in close proximity to one another.

2.  The involvement each parent had with the children prior to separation and since separation.

3.  Whether the parents are able to communicate.

4.  Whether the parents encourage and support the relationship of the other parent with the Children.

5.  Each party's work schedule.

Obviously, there are many others, as custody issues must be decided on the facts of each case.

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Once again a horrible result in a custody case.  In Dandridge, Tennessee, outside of Knoxville, it appears that a maternal grandfather shot and killed the paternal grandparents, and wounded the father.  Unbelievably, the boy who was the subject of the custody issues was present.  The mother had been indicted on drug charges with her new husband.

Obviously, this is an extreme example.  And a tragic one.  People really have to keep their lives in perspective.  The poor boy has a mother who is in or going to jail, two grandparents dead, and his father is in the hospital.

Hopefully, parents involved in custody cases can realize that putting their child first is the most important thing.  Although parents may not always agree with decisions, courts do their best in making decisions in the best interests of children.  And that regardless of any result, violence is never the answer. 

To read more about this story, read the story in the Knoxville News Sentinel.

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Legal Custody is defined in Section 5302 of the Domestic Relations Code as:

The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.

This is very different from Physical Custody, which is defined in the same section as "The actual physical possession and control of a child."

Often new clients do not understand that in 99.9% of the cases, parents share legal custody.  This means that they need to discuss and agree on the major issues for their children.  New clients may try to tell me that their estranged spouse is incapable of participating in and/or making sound decisions.  My standard reply is to tell them that unless the other parent is a "murderer or an abuser", it is very unlikely that the client is going to secure sole legal custody through the court.  Obviously, my examples are "exaggerated", but they are illustrative of how difficult it is for one parent to secure the decision making power over the children's lives.

Issues which come up in this area include:

• What is a "major" decision?  Obviously, surgery is "major".  But is the decision as to whether the child plays baseball or lacrosse? 
• What if the parents can't agree?  How is the issue going to be decided? 
• What happens if one parent take unilateral action?

What may be major to a parent, may not be major to a court.  Courts see horrific things most days; do you really want to ask a judge to decide whether a child should be allowed to play a sport or take music lessons.  On the other hand, when an issue is a real one, e.g. the need for psychological treatment for a child to which one party refuses to consent, obviously court intervention is going to be necessary. 

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