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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Following up on my post on the subject, I had the opportunity to speak with ColIn O'Keefe of LXBN regarding the story of Alex Collins, the high school football recruit whose mother refused to co-sign his National Letter of Intent. Alex's mother took the letter to an attorney and temporarily delayed his commitment to playing at the University of Arkansas next year.  In the interview I explain the backstory, its family law implications, and what might be next. 

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College football recruiting can become, for a sought after recruit, the perfect intersection of where talent meets commoditization; in other words, recruiting is where the athletic talents of the amateur student-athlete attract the attention revenue generating college football programs.  Recently, however, an incident between a student-athlete and his mother highlights the conflicting agendas and motivations that people may have in a student-athlete’s life. 

Alex Collins is a running back from Plantation, Florida. He’s rated as the fifth best high school running back by a service that evaluates players.  A talented player such as Alex will garner national attention from major football programs.  Surprising many people who thought he would stay near home at University of Miami, Alex, instead, chose to attend the University of Arkansas. 

(Photo by www.atlantablackstar.com)

We have explored in this blog the family law issues that can arise for professional athletes and how their families can create problems and require the intervention of attorneys, if not the police.  Alex Collins situation on the National Letter of Intent Day highlighted that it is not just professional athletes who have this issue, but that the interference of family and friends in an athlete’s life really begins in high school and through the college recruiting process.

This year, the earliest a graduating senior could officially commit to play a sport at the college level was on February 5^th which has become known as the National Letter of Intent Day.  Typically, however, a student-athlete signs their “letter of intent” – which are more appropriately called “grant-in-aid” letters – and commits to playing their sport the following year for a university in exchange for having all or some of their costs covered by the institution.  It is an important milestone for a student-athlete that has grown in media coverage over the past several years, so much so that your can find webcam coverage of schools' fax machines as the letters roll in.

Alex’s school scheduled a media event for the morning of February 5^th where he could sign his letter of intent, however, it appears his mother disputed the decision so strongly that she took the letter and fled the premises of the school, thereby preventing her son from becoming a Razorback.  According to news reports, Alex’s mother wanted her son closer at home at the University of Miami.  Speculation ran rampant as to whether there might be more nefarious factors in play (universities and the NCAA have had to deal with inappropriate financial benefits paid to recruits from boosters and third-parties for decades).

The application of this fiasco to family law is unique – Alex is a minor and could not sign his letter of intent and other documents to attend Arkansas without a parent.  By taking his letter and refusing to sign it, Alex’s mother was making a last ditch effort to keep her son closer to home (perhaps not her last ditch effort – she’s hired the late Johnnie Cochran’s law firm, The Cochran Firm, to represent the “family’s interests”).  Alex’s father subsequently co-signed his letter of intent and Alex – for now – will play at Arkansas next year.

(photo by www.atlantablackstar.com)

It begs the questions: who has the right to sign off on a child’s college choice when they are a minor?  How much contact can a school have with a recruit and can a parent bar access to their child?

In Pennsylvania, a child is a minor until they reach eighteen (18) years old and under 23 Pa.C.S.A. § 5101, any individual 18 years of age or older shall have the right to enter into binding and legally enforceable contracts.  Due to the fact that direct recruiting from college coaches can begin when a student-athletes are in their junior years (written correspondence starts earlier), parents wield varying degrees of influence and can control access to their children by college coaches.

This is a difficult path to navigate for college coaches. Brian Flinn is the wide receivers coach and recruiting coordinator for Villanova University and identified it as standard policy that all letters of intent and applications must be co-signed by a parent of the recruit if they are a minor.  Moreover, he acknowledges the importance of developing rapport with the player and the parents. “It's important for us to be honest and upfront each step of the way so parents can trust us and our programs,” says Flinn. 

The stress of recruiting, as highlighted by the Collins situation, is not limited to the kids. “If we haven't built a solid relationship with the prospect and his family we run the risk of losing him when they are overloaded with information - and misinformation - as Signing Day approaches.”  The advent of social media, according to Coach Flinn, “opened channels to prospects that were previously unavailable…and has also given opposing coaches access to your committed prospects - making it even more important to build a great relationship with prospects and their families.”  In the end, Flinn believes, all of the influences, social media, and attention really has not changed the fundamentals of recruiting: “find the players that best fit your program and left them know, honestly, why your university is the best place for them for the next four years and a foundation for the rest of their lives.”

Under Pennsylvania law, theoretically, the issue of college education is not specifically addressed in the code and is specifically excluded as an expense requiring contribution to by the parents under the Support Code.  During the period of time the child is a minor, however, I could see how one parent could leverage their legal custody rights to block a university’s access to their child, or otherwise prevent the child from taking a visit to the school.  If Alex Collins lived in Pennsylvania and his parents were separated with joint legal custody, could his mother have sought judicial intervention under the custody order to prevent Alex’s father from signing the letter of intent? Reasonably, it would seem that no matter what the actions of his parents, Alex will be able to attend whatever school he chooses as soon as he turns eighteen; perhaps he would have to wait to officially commit to a school until his birthday, but I can not fathom a court intervening to decide where a student-athlete like Alex would go to school; unlike elementary or high school, the Court would not engage in an educational analysis to see whether one university is better than the other.

Alex Collins situation is an unfortunate combination of the competing interests among the adults in his life interfering with his decision as to where he will attend school.  An optimist would say that all of those involved in Alex’s decision have his best interests at heart.  That said, based upon the events surrounding his recruitment, perhaps there is a more obvious reason why he’s moving half-way across the country for school?

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Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.

The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.

In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.

As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.

An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.

Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,

Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.

Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)

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While this topic of this blog post is not exactly what this blog typically covers, I frequently find that litigation in another areas of law either impacts or illuminates an issue dealt with by our family law clients.  One such example would be a recent decision at the Eastern District of Pennsylvania interpreting various terms of the Family and Medical Leave Act (“FMLA”).  In that case, a mother had to take off time from work in order to find a new daycare for her autistic daughter who has significant developmental disorders and physical impairments.  Her employer, Reading Hospital Medical Center, opposed the use of FMLA leave for this purpose.  FMLA leave is designed to allow an individual to take time off from work to address family medical issues without the risk of losing their job.

The Honorable Timothy J. Savage of the Eastern District looked to the Americans with Disabilities Act (“ADA”) to help identify whether or not the mother’s daughter had impairments which would cause her to fall within the “serious health condition” category of the FMLA.  In doing so, there was also the interpretation of whether the change in daycare constituted “changes in care” as it is contemplated by FMLA regulations.  As drafted, the regulations are silent as to whether moving from one non-medical facility to another constitutes a “change in care,” as it would otherwise be considered when moving someone to a facility offering medical treatment.

Judge Savage’s opinion would appear to expand the definitions of some important FMLA terms, but Reading Hospital Medical Center disagrees and does not consider the holding to be a significant expansion of FMLA regulations; they believe Judge Savage’s opinion addresses their narrow set of facts and does not have a broader application beyond this case.  Nevertheless, the holding seems to make a persuasive argument that the regulations now include changes of care for a family member with a serious medical condition, even if the change of care relates to a non-medical facility.  The designation of the medical condition of the individual will dictate whether the time off to facilitate a change in care falls within the protections of the FMLA.

 The application of this case to family law is that informs both attorneys and clients as to how much flexibility they have to make appropriate child care arrangements for a special needs child during work hours.  This could be extremely important to a client with a disabled child who has either a limited support network or a difficult (or even non-existent) custodial arrangement with the other parent. Maintaining consistent child care can be challenging under the best of circumstances, but when medical and developmental issues of a child are factored in, it makes a difficult situation that much harder.   For a single parent, child care coverage means maintaining employment and stability for the child; it would seem like Judge Savage’s opinion reasonably fits into the purpose behind the FMLA.

For more information about other employment discrimination issues, go to Fox Rothschild’s Employment Discrimination blog written by Richard Cohen and Christina Stoneburner of our New York and Roseland, NJ offices, respectively. 

The case involved is Wegelin v. Reading Hospital Medical Center.   An article on the case was written by Saranac Hale Spencer (sspencer@alm.com) and published in the December 4, 2012 issue of the Legal Intelligencer (Vol. 246, No. 108).

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The practice of family law has seen a shift in discovery in recent years with the increased use of social networking sites by clients. There are increasingly easy ways to access and download the histories of websites like Facebook; the implications to clients is what they thought were private comments to “friends” do not evaporate into the ether of the internet, but are, instead, discoverable and producible information which may be used at trial. I discussed this issue before on our blog and how family law lawyers are reporting a major increase in the use of online evidence at trial.

Facebook’s ability to download the entire history of the account undoubtedly offers the largest trove of discoverable information, but Twitter recently announced that they are providing a method for downloading account histories, as well. Since people often discuss every aspect of their personal life with their private – and not so private – “friends” online, these account histories are proving to be important sources of information, particularly with many Pennsylvania courts emphasizing the importance of parties fostering positive relationships between the child and other parent. Consequently, long strings of negative comments about their ex-spouse (for example) could have an adverse impact on a parent later on in a custody trial when those comments are introduced into evidence.

The advice most attorneys give to their clients using social networking sites during a case is simple: STOP. Their next advice should be not to delete anything since the Court could take an adverse view on a party destroying discoverable information. Social networking is a double-edged sword of providing a community of support to people, but also becoming a forum to defame, insult, or criticize the other side. Knowing Twitter is joining Facebook and other sites in making accounts so easily produced should give people further pause about what they say online about the other party.

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In a recent custody case, the Court denied Father contact with his children except for supervised visits while they underwent therapy.  Mother filed a contempt petition asserting that Father violated the custody order when he went to a school concert and videotaped both the Mother and the child while there.

The trial court correctly dismissed the contempt petition after Father testified that he understood no contact to mean no physical contact or conversation with the children. But, as sometimes happens, the Court used the contempt proceeding to “clarify” what the order was meant to accomplish.  Specifically, the trial judge told the Father that he could not appear at the children’s activities.  Father appealed and in P.H.D. v. R.R.D. the Superior Court vacated the

“clarification.”

This is an important decision because trial court judges are frequently charged with the duty of managing unruly families who like to push the envelope when asserting their parental rights.  It may well be in this case that this was precisely what Father was trying to do.  In contempt court, however, the sole question is whether an explicit order was violated.  Period.  It is not an opportunity to “fix” an otherwise imperfect order by changing its terms.  And Superior Court judges Wecht, Bowes and Musmanno have served a purpose in reminding trial judges that if they want to amend an order, all parties need to have notice of the fact that an amendment is being considered so that they can prepare for such a hearing.  This is in accord with longstanding precedent that contempt court is not a place to modify custody orders.

Lest it appear that we are siding with Father, we note that there may well be a solid ground to amend the order.  For Father to have appeared at a recital and videotaped his child is clearly not a contempt of a no contact order.  But when we read that Father also videotaped Mother (assuming she was not part of the child’s performance) one questions whether the motivation was to record or to harass.  But if that is the issue, the P.H.D. case makes clear that everyone needs to have due process notice what the issue is so each party can prepare and bring witnesses who might show how the videotaping was either innocent or menacing.  If menacing perhaps a modification was in order.  We also note that the judge may have been trying to do the right thing but the opinion clearly points out that he skipped a procedural step (notice and hearing) which the principles of jurisprudence demand.

N.B. A curious event is reported in the case.  The guardian ad litem asserted a procedural irregularity on Father’s part that could have resulted in this appeal being quashed. Query: Is that part of a guardian’s role?

P.H.D. v. R.H.D. 2012 Pa. Superior. 246 (Nov. 13. 2012)

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We have written on this subject before reporting a Superior Court decision earlier this year that put a new focus on benefit to the children as a condition to successfully secure an order allowing a parent to relocate.  The rule of precedent requires trial court judges to pay attention to and follow Superior Court rulings and three recent decisions in Berks County appear to demonstrate that the trial courts are taking heed.

On August 14 Judge Scott Lash issued a ruling in Miller v. Lee.   In that case a mother’s new husband had been offered employment in Alabama. He had accepted the job and purchased a home there by the time of trial. The parties had been working under a 2009 agreement which gave Mother primary physical.  While the Court appears to have been somewhat critical of Father’s passivity concerning mechanical duties like physician appointments, it also found that Father had a solid bond with the child; that Father could not afford to travel to Alabama and that a proposed schedule that gave the child summers with Father was not an adequate substitute even though the actual time allotment was roughly equivalent.  Although the increase in the pay for the stepfather was substantial, the Court did not see it as worthy of disrupting Father’s regular involvement in all aspects of the child’s life.  It was also noted that this was not a relocation that would produce a termination if not accepted.

Two weeks late Judge Lash ruled in Thompson v. Stoudt.  Here the parties had an informal week on/off arrangement for their two children. Mother asked to move from Berks to Carbon county to live with another man.  Again, the court found Father’s conduct to be less than exemplary finding that Father was prone to snap at the children.  But the Court still found the relationship positive and the parties hereto fore, cooperative.  It being clear that the relocation would disrupt the 50/50 schedule and noting no enhanced benefit to the children in particular the Court denied the relocation.

On September 28, Judge James Bucci issued his ruling in Moore v. Moore.  In this case the parents had adopted a child from West Africa and brought him home to Berks County.  Shortly thereafter the couple separated but they shared the now six year old child on an equal basis.  Mother formed a relationship with a man who resided in Delaware County and filed a request for relocation.  Shortly thereafter she enrolled the child in activities in Delaware County and otherwise presumed that her request would be granted despite Father’s filed opposition.  The Court took umbrage at what it perceived to be a desire on mother’s part to relocate the child before the Court could act on her request.  With Mother having sold her home in anticipation of the relocation, the Court ordered that the child reside primarily with Father until the relocation trial could be held.  Following the trial the court made the temporary placement permanent holding that Mother’s approach to the entire matter was disruptive to a young child who already had endured a move from one continent to another and a fairly immediate divorce by his adoptive parents.  While Mother posed that the school system in Delaware County was superior to that in Berks, the Court found that any advantages the school system might offer were undercut by the potential loss of continuous contact with the Father.

Each of these opinions is extensive: 20-30 pages.  Both litigants and their counsel are encouraged to study how courts are addressing these intensely emotional cases.  The first two cases are PICS Case Nos. 12-2128 and 12-2145.  As we have reported earlier, the moral to the story appears to be that relocation is not going to be easily granted unless there is a well defined plan and a palpable direct benefit to the child.

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In July of this year USA Today published an article by Kim Painter, highlighting a report published by the American Academy of Pediatrics, which identified psychological “maltreatment” as being just as harmful as other types of abuse.  “Maltreatment” or “Abuse” is more easily recognized as being physical or sexual in nature, however, the American Academy of Pediatrics has found that psychological abuse is linked to such difficulties as mental illness, delinquency, aggression, school troubles and life long relationship problems among those who were abused.  The Academy recognized the difficulty in identifying abuse, but defined it as “when an interaction between a parent and child inflicts harm and causes difficulty with the child’s emotional well being and development.”

Emotional abuse is an allegation occasionally heard in the context of custody cases.  As the American Academy of Pediatrics points out, it can be difficult to identify, particularly by parents, attorneys, and the Court who may not be trained to interpret and evaluate whether emotional abuse is occurring.  Nonetheless, such allegations should be treated seriously and may be identified through a custody evaluation. 

Depending upon the County in which you reside, custody evaluations may be required or they may require the permission of the Court to occur.  The facts of the case will dictate whether an evaluation or some type of counseling is necessary for the child.  Notwithstanding an abusive situation, it is fair to say that a child going through divorce may benefit from counseling in some way.

Emotional abuse can be extremely damaging to a child and, as demonstrated by the American Academy of Pediatrics, lead to life-long problems for its victims.  The hope is that by focusing on this form of abuse, that awareness may be raised and at-risk children identified earlier and appropriate caregivers and professionals can intercede on the child’s behalf.

Montgomery County is fortunate to have MCAP ("Montgomery County Child Advocacy Project") to provide legal representation and protection to abused children.  You can learn more about MCAP and what you can do to help their mission at http://www.mcapkids.org/.

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HBO will air a new documentary executive produced by Rosie O’Donnell called “Don’t Divorce Me! Kids Rules for Parents on Divorce.” It is scheduled to first air on September 20 and will probably be in HBO’s rotation for a while after that.

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If you are like most parents, you spent this past weekend thinking about what your kids needed to be ready for school, which can be stressful enough by itself.  If you are like some of my clients, you may have spent part of the weekend also worrying about  how to navigate through the beginning of school with your kids' other parent, which can just add to the stress.

I want to take this moment to share with you some tips that all parents need to consider and also share some additional tips for those parents who are raising their kids in separate households to help alleviate the stress and help you enjoy what is surely an exciting time for your children!

1.       Breathe.  First and foremost, breathe!  If you have been separated for awhile, and you are anxious about the school year because history proves this year may be a struggle with your children's other parent, take a deep breath!  Say the serenity prayer, resist being pulled into the struggle, resist drama created by the other parent, and try not to sweat the small stuff.

2.       Check your custody Order.  The biggest concern my clients have when facing a new school year is the fear of being left out of important information regarding their children.  They worry the teacher won't know how to contact them, or they worry they may be blocked from getting access to their children's records.  If you are raising your children apart from their other parent, you likely have a custody order outlining your roles and responsibilities.  The vast majority of parents share legal custody.  What this means is that each of you have an equal right to contact the school, the teacher, the doctors, etc., to make sure you know what your children need to be ready for their first day and the right to keep in contact with everyone to track your children's progress.  If you are not sure if you have shared legal custody or the right to directly contact the school, check with your lawyer before taking any action that may go against the order you have.  Some parents readily share information with one another and are able to successfully work together to make sure the school knows about their situation and knows to contact both parents.  However, for some, this is just not their reality.  For the parents who are in this category, my advice is simple.  Call the school and let them know your children live in two households and ask that they contact you, in addition to the other parent, if there is an emergency.   The same advice is true of doctors and other caregivers of your children.  If you can't keep the dialogue open with your children's other parent, take steps to keep the dialogue open with everyone else who interacts with your children on a regular basis.

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One of the more nettlesome public policy questions courts are forced to address is when and under what circumstances are the rights of a child’s parent to be terminated.  The right to procreate and to enjoy the comfort of one’s off spring has long been considered fundamental as a matter of constitutional law.  But how is this right meaningful in a world where a parent has been or will be incarcerated for a substantial portion of the child’s minority?  This is the question a unanimous Supreme Court sought to answer In Re: Adoption of S.P.    

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A study conducted by the University of Chicago and Georgetown University revealed that children whose parents divorce when they are between three and five years old are more likely to have to behavior problems than older children, such as middle school or adolescent children.

That divorce has an adverse impact on child development should come as a surprise to no one; considering the emotional and daily routine disruption of moving from a two parent household to a single parent household, there undoubtedly be a lasting impression left on a young child.

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A recent revision to Pennsylvania’s custody and military affairs statutes has made it easier for deployed or deploying service men or women to address custody cases and assign their custody rights to family members.

Sen. Lisa Baker, a Pennsylvania state Senator representing portions of Luzerne, Pike, Susquehanna, Wayne, and Wyoming Counties (Pa. 20^th District) introduced the bill which was signed into law on April 12^th.

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Since the new custody statute and relocation provisions came into effect in 2011 we have had only one reported decision analyzing the statute. E..D. v. M.P. 2011 WL 5392990.  That changed on Tuesday with the publication of CMK v. KEM, a case decided by the Superior Court affirming a Mercer County decision denying relocation.

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Here's an interesting article that follows up my recent blog on Facebook:

http://allthingsd.com/20120208/you-know-who-really-loves-smartphones-divorce-lawyers/

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I wrote a blog a few months ago about a man who was using a blog to disparage his wife which sparked a Free Speech debate - and a mess in his custody litigation.  My blog post can be found here:

http://pafamilylaw.foxrothschild.com/2011/08/articles/custody/free-speech/index.html

Social media has become a big factor in our family law cases.  A recent article discussed Facebook and how "posts" to Facebook can affect family law cases (i.e. a person claims they do not have money for support, but they post pictures of their European vacation on Facebook or when a parent bad mouths the other parent in a "status update.").  The article can be found here:  http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202540333140&Facebook_Has_Become_a_Factor_for_Pa_Family_Law_Cases&slreturn=1

Many attorneys counsel their clients to shut down their Facebook pages during their case.  Is this going to far?  Is it necessary?  Unfortunately, it probably is necessary.  Each party is under such a microscope during a family law case that they cannot afford to have anything on the web or Facebook that would cast them in a negative light.  Even the most innocent post or picture can be misinterpreted, and it is better to avoid the issue altogether than to deal with the fall-out. 

We are all entitled to "free speech," but the issue becomes how to best use it during family court litigation.

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On November 9, 2011, the Superior Court filed its first decision (E.D. v. M.P., 2011 PA Super 238 (Pa.Super. 2011), regarding the newly enacted Child Custody Act, 23 Pa.C.S.A. Section 5321 related to a Petition for Relocation.  The Superior Court vacated the trial court's order and remanded the case to the trial court to make the proper analysis under the new law.  In a relocation case, the Court must consider the following ten factors: 

(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child's life.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.

(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

(4) The child's preference, taking into consideration the age and maturity of the child.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.

(10) Any other factor affecting the best interest of the child.

Because the trial court failed to look at these ten factors they remanded the case back to the trial court.  So, the lesson from the case is:  make sure you present testimony at the trial court level regarding these ten factors to ensure your case is compliant with the current case law.   

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Here's a great article about putting your children first after a divorce:

http://voxxi.com/2011/11/28/putting-the-kids-first-after-divorce/

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Summer has past and it feels like we are already well entrenched with fall. For some couples with custody agreements, issues about summer vacation and the summer-time holidays have been addressed. As the year progresses, however, religious holidays become the main source of contention between people. If they have not already addressed how they will divide these holidays, it can make a normally stressful time even worse as the schedules of who has the children when and whether extended families will get to see the kids, etc.

Mark Banschick, M.D. uses the celebration of Rosh Hashanah this week as a jumping off point in an article on some practical tips for dealing with the holidays.

In reality, the best way to address holidays is to have a specific schedule in place and in a Custody Order. When it comes to negotiating a schedule, however, it is important to identify what is really important to you and, particularly for religious holidays, what aspect of that holidays has meaning to you in terms of family traditions or religious upbringing for your children. If Midnight Mass is more important to you than having the kids open gifts at 5 am, then simply ask for Christmas Eve and open gifts with the kids in the afternoon on Christmas or, for that matter on Christmas Eve. Rare is the child who will object to stretching out Christmas an extra day on the front or back end.

Do not lose sight of the fact that the point of holidays is to share special time with your family. As the children grow up, it will be moments over holidays that make for long-last memories. By prioritizing what is important to you and your family, you are most likely to provide your children with positive memories from each household.

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People get irrational and they can't see straight when they are going through a contentious custody battle.  Oftentimes emotions get in the way of what is the best interests of the children - not on purpose of course - but because the situation is so "heated."  Sometimes it helps to take a step back.  The link below is to an article that gives you the steps to take a step back.   They are helpful tips when thinking long term strategy with custody situations.  Most likely, you are going to have to deal with your child's other parent for a long time - so it would be advantageous to figure out how to do it early.  Here's the link:

http://www.huffingtonpost.com/julie-a-ross-ma/for-divorce-and-joint-cus_b_911612.html

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It’s the end of July; the perfect time to be discussing with your former or about to be former spouse the plans for the child(ren) for the balance of the summer, right?  Well, why not?  If the summer schedule has been discussed in the first three months of the year what fun would that be?  And that would have meant more rational discussions and advance planning and other things that would give stability to the lives of the children.  What fun is that?

Candidly, lawyers hate custody at least twice a year.  The first and worst is anything having to do with Christmas.  Christmas can be discussed rationally for 10 months of the year.  But after November 1st, it becomes a holiday whose single purpose is to torture lawyers as much as it tortures parents.  As most folks realize, Christmas is usually split with Thanksgiving.  One parent gets the turkey; the other gets Santa and all the trimmings.  The longer one waits to get the harmony of this split established the more embedded “family plans” become.  And “family plans” never work well with an easy division of the holidays.  It is now late July.  If the plans for Thanksgiving and Christmas are not already set in stone, call your lawyer immediately.  Or, wait a few months so that the intensity of the battle can reach epic proportions together with the bill for the negotiations.

The second time to hate custody is any time after July 4.  This is when the non-plans or the plans articulated in a phone message but never written down become an emergency.  Of course your ex knew that you always take the third week of July for your annual, but not ever attended, family reunion.  And of course your no good former spouse just booked a trip to Disney on the week you meant to schedule a trip with the kids to Bar Harbor.

Every year, countless emotions and dollars are bled on the altar of uncommunicated custody plans.  All of it is completely unnecessary and only masochistic lawyers enjoy this process.

Save yourself some money and you and your lawyer some angst by committing to the concept that each parent will have summer plans in place not later than April 1st.  In odd numbered years, you set the schedule by that date; in even numbered years, the other parent gets the preference. This format allows everyone a reasonable shot at registering for the “good” camps and not just those that have a space or two.  It allows reasonable, if not optimum, seashore rentals.

A couple of other tips: a week’s vacation is five days tacked on to your usual custodial weekend and not seven days that only overlaps the other parent’s weekend and not your weekend.  If you want a shore rental which typically runs Saturday to Saturday, put that on the table early or understand that the start and or end of your vacation will be at home.  If it is likely that your co-parent will also do a week at the shore, how nice to avoid the additional 4-6 hours of travel for the kids by arranging a common drop off point in South Jersey. Finally, most sure that custody orders clearly indicate that holidays “trump” the ordinary schedule, but that vacations do not trump holidays.  So, if Father has July 4th, it is neither equitable nor appropriate for Mother to take her vacation the first week of July.

We also see parents unduly stress their kids by engaging in competitive vacationing.  So father takes them for a week to Disney.  Mother will “see” that vacation and raise the stakes by taking them immediately to a ranch in Montana.  Imagine being the kid.  Two great vacations, but when placed back to back, the child ends up exhausted.

Last, but not least, does vacation mean “summer?” That used to be the standard, but today more and more parents are opting to take vacation either during the school year or over winter or spring break.  Schools seem to be more than willing to accept the disappearance of children during the academic year once assured that class assignments will be completed notwithstanding the absence of the children.  Whether this is appropriate ends up being an unproductive and often expensive debate.  Better to have it before one parent announces a plan to haul the kids away in January to “experience” the culture of Puerto Rico or Mexico as lived in a $300 a night resort.

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In complex custody litigation matters, we often use a custody evaluator to help us and the court determine what is in the children’s best interests.  A custody evaluator should be a psychologist who is specially trained and has experience with high conflict custody matters. The custody evaluator will meet with the parties independently and meet with each party and the children, often in a home visit. The custody evaluator will likely perform testing of the individuals and do a comprehensive interview of the parties. Once the custody evaluation is complete, the custody evaluator will issue a report.  Often the report makes recommendations for a custody schedule.  The APA guidelines for custody evaluations can be found here:

http://www.apa.org/practice/guidelines/child-custody.pdf.

Most courts rely on the custody evaluation because the court does not have the time or resources to make an in-depth examination of the parties and the children. The custody evaluation helps the court (and attorneys) determine what the appropriate issues are for the custody trial to determine what is in the children's best interests. 

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I wanted to offer a quick word about an important program based out of Norristown, Montgomery County; the Montgomery Child Advocacy Project “MCAP” is a nonprofit organization that provides free legal representation and social services to abused and neglected children. They do extremely important work and provide children with an advocate who looks out for their best interests and ensures that they get the protection, treatment, and help that they need to overcome an abuse or neglect.

MCAP is holding their annual “Run for the Hill of It” 5k run on Saturday, July 30, 2011 at 8:30 a.m. Race details can be found here. Run the race, donate you money, or donate your time (or go for the trifecta), but please support this organization.

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Leslie Spoltore, a partner in our family law group and based out Wilmington, Delaware recently posted a blog entry on the Child Passport Issuance Alert Program (“CPIAP”). This program allows a parent to file an objection with the State Department to the issuance of a passport to their child. In effect, it provides parents an early warning if the other parent tries to have a passport issued for their child without their knowledge.

Please read Leslie’s blog. She also provides a link to the U.S. State Department’s webpage where parents can find more information or download an Entry Request Form.

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Going through a divorce is tough, especially for the children.  It is a transition time for everyone, and the children need special consideration.  I recently read an article about how to help children through a divorce.  I do not know Sue Atkins or endorse her products, but I thought her article had some good points.  It can be found here:  http://sueatkinsparentingcoach.com/14071/

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I recently fielded a phone call from a disgruntled father who wanted to complain about his child’s mother’s failure to adhere to following a religious faith. He claimed that her dating another man violated the custody order’s requirement that the child be brought up Catholic.

While the child goes to Catholic school and regularly attends church, this father seemed to believe that her decision to date someone (he is remarried) and introduce that individual into their son’s life violated a tenant of the Church. Interestingly (or ironically), he does not seem to find his divorcing of the child’s mother and remarriage to be problematic, despite the fact that Catholicism takes a dim view of divorce.

Religion in custody cases is a legal custody issue. What’s more, it is an issue in which the parties DO NOT need to reach an agreement on how the child is raised. Basically, each parent gets to bring up the child in their particular religious faith. We talked about religious decisions previously, and it is worth taking the time to examine Pennsylvania’s case law on the topic.

Pennsylvania case law has evolved over the years to consider whether the introduction of a religious faith would pose a grave threat of harm to the child. The facts of a few Superior Court and Supreme Court of Pennsylvania cases shed light on how the Court views religious issues as a consideration, but with a considerable amount of latitude for the parties’ Constitutional rights to free speech and religion. For instance, the courts have upheld a parent’s right to espouse plural marriages – though such marriages are against the law – so long as the child is not subject to a plural marriage (Shepp v. Shepp, 821 A.2d 635 (Super. 2003); having a child baptized in one faith over another (Hicks v. Hicks, 868 A.2d 1245 (Super. 2005) does not violate legal custody rights, and; deciding that a Father’s practice of Neo-paganism was not detrimental to the development of the child (Luminella v. Marcocci, 814 A.2d 711 (Super. 2002) also helped shape Pennsylvania’s consideration of religion in custody cases.

The net effect of these cases seems to be that religion will be under the purview of the parties, not the Courts and that so long as it does not place the child at harm or subjects them to participating in illegal activities, then the custodial party’s religious choices are as valid as the other’s.

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 The May 13 edition of the Wall Street Journal featured an article concerning the internationalization of the home buying market.  As our global economy shrinks our world people are buying homes in far off places as a matter of convenience and investment.  Easy access to international residences, however, can have unintended consequences as a May 13^th interview with Mr. David Goldman demonstrates.

David Goldman told his story to the public television and radio outlet for metro Philadelphia, WHYY. Goldman started out with a storybook life.  While a student in Italy he met and fell in love with a student from Brazil.  They married, moved to Southern New Jersey and began the perfect life together, blessed with a young son, Sean.  David’s in-laws were part of a wealthy family in Brazil and were so taken with America and their grandchild that they bought a home in New Jersey near their daughter and her young family.  

David’s charmed life could not endure, however, and in 2004 his wife packed up for a two week vacation in Brazil with their son and her mother.  David drove them to the airport and his time in hell began.  It turned out that his wife did not share her parents’ infatuation with America.  She had nothing bad to say about David, but she told him she was not coming back and that if he fought her, he would never see Sean again.  

David did fight.  His wife, though, was true to her word and kept David away from his son for four years despite a set of international treaties called the Hague Convention of 1981. These laws were intended to prevent parental abduction of children to other countries, but David was unable to apply the international pressure needed to enforce these laws in Brazilian courts and he was unsuccessful in his attempts to see his son.

His wife divorced him in Brazil and, ironically, married a lawyer. She died in 2008 while giving birth to another child. Yet, David did not get his child back until a year after his ex-wife’s death and even today he has cases pending both in Brazil and New Jersey with his former in-laws and his former wife’s husband. The happy news is that Sean has lived with David since 2009. 

The interview is worth the listen.  It is a legal story told from a Father’s perspective.  The take-away is simple: the world outside the United States and parts of Western Europe are very different than here. People with money and power run the systems of many countries without much concern for rule of law or due process.  Mr. Goldman tells of going to hearings where in Brazil judges looked at him and told him that the fact that his child was abducted was irrelevant because the child had a new status quo. Ultimately, he did secure an order getting his child but more than a year after the Mother of the child died. 

Possession is 9/10 of the law, especially in jurisdictions where old world values translate into an old buddy system.  The international world is an exciting one, but for those with children it can be a harrowing one as well. 

Whyy.org   Fresh Air with Marty Moss-Cohane: 

David Goldman’s book is called “A Father’s Love.” (Penguin).

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Millions of Americans recently filed their income tax returns. According to an article by David Kocieniewski in The New York Times approximately 200,000 of those filers are involved in abducting their own child. While I found this statistic to be shocking, perhaps more shocking is that these abductors claim their kidnapped children as dependents on their tax return. What would otherwise be a concrete lead on one of the 12,000 abductions that go on beyond six months is instead a dead-end pending a court order from a federal judge.

Parental abductions are usually a product of a contentious custody case or abusive domestic situations. A parent simply vanishes with the child. Oddly enough, however, many of these individuals file their tax returns. As Mr. Kocieniewski’s article points out, who knows the reasons why they would go ahead and file a tax return after having taken the step of kidnapping child? What is undoubtedly an unintentional consequence of post-Watergate security legislation, however, requires a kidnapping to be investigated by federal law enforcement (most abductions are invested by local law enforcement) and a federal court order requiring the I.R.S. to turn this information over to investigators.

So while the I.R.S. regulations allow for the dissemination of information for child support cases, the guidelines for addressing criminal cases sets a higher burden on the party seeking information. Tax returns are extremely useful in family law cases and the difficulty in utilizing them to return a child to his or her parent is a tragic consequence of the law protecting confidential information.

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When I posted about the role of videoconferencing in custody matters it had not occurred to me that videoconferencing might also play a role in marriages as well. Yet, people all over the world have been utilizing services such as Skype to get married.

The trend is called “Marriage by Proxy” and is legal in only four states in the country: California, Colorado, Texas and Montana. A double proxy wedding, where neither party is present, is only legal in Montana. Generally, in a state where Marriage by Proxy is legal, only one party will be at the wedding and someone else will either stand-in for the absent party or the absent party will appear via video conference.

Members of the armed forces have taken advantage of videoconferencing when they can not be present in the same place on the date of their wedding. In 2010, an Air Force Captain deployed to Afghanistan wed his fiancée who lived in Texas. The couple had met on the internet and spent countless hours communicating through e-mail and videoconference, but had never actually met in-person when they were married. For them, getting married on Skype made perfect sense.

Same sex couples have tried to use videoconferencing to conduct their wedding ceremonies in states that allows same sex unions when their state of residence does not. Mark Reed and Dante Walkup tried to marry while in Texas using an officiant who was in the District of Columbia. The ceremony, which was attended by family and friends and included all the usual wedding pomp, was conducted over Skype. The couple traveled to Washington D.C. prior to the ceremony and obtained a valid marriage license. Yet following the ceremony, the couple was contacted by the Superior Court of the District of Columbia and told that the marriage was invalid. In order to validate their marriage, the couple and the officiant must be present within the District at the time of the ceremony.

While it might seem easier to have your groom appear on a television screen via Skype than to patiently await his return from abroad, be careful that you meet all the legal requirements (including who officiates) attendant to a Marriage By Proxy. The last thing you want is to find out, decades later, that you were never legally married.

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When meeting with a perspective client, one of the most important things we discuss are legal fees. Inevitably, the potential client will ask what he or she can do to help lower his or her fees. Can they do their own photocopying? Can they take filings to the courthouse themselves? Will it save them money if they look for legal authority on the internet and forward it to me?

While I recommend certain things, like being organized, obtaining financial documents yourself, and responding promptly to correspondence and pleadings, I never suggest that a client cut certain corners. Leave the legal work, such as research and drafting, to the lawyers. After all, you are paying for legal knowledge and experience. 

Because many people feel they can not afford a lawyer, yet they make too much money to qualify for Legal Aid, they choose to represent themselves. For some people, this may be a good decision. For many others it leaves them floundering in a legal system that is not designed for navigation by a non-lawyer.

I recently handled a support matter against a gentleman who was representing himself. It was not a simple support matter. While the Master gave him some leeway at trial, the gentleman lacked basic knowledge regarding what information he needed to present to the court and how to present it. When we received the Master’s decision, it was obvious my opponent should have hired an attorney. 

While in a support matter, your mistakes might cost you literally, in a custody matter, your lack of knowledge of local rules and procedure could cost you figuratively. You need to know what to file in order to have your custody matter listed before the court and what to file in order to bring your child with you to court. If you do not file the necessary paperwork, your custody matter might sit indefinitely without ever being heard by a Master or your child might not be able to express his or her desires to the court. You may waive your right to pursue certain claims, such your opposition to a relocation.

There is a reason why attorneys charge money.  Legal work is detail oriented and requires a specialized body of knowledge.  Missing a deadline, failing to present your case effectively, or filing the wrong paperwork can result in a loss for you.

That said, there are plenty of places in Pennsylvania that can help you if you can not afford a lawyer. The place to start is at the law library of your local court house. There, you can find copies of the statutes, cases and local rules that will dictate what you need to file, when you need to file it and how to file it. You can also contact Legal Aid or other similar agencies to see if you qualify for free or low-cost legal services. http://www.palegalaid.net/ 

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A recent case out of Lawrence County, Pennsylvania highlighted the need to consider every adult who may be involved in a child’s life during a custody case. While it may be axiomatic that the courts will consider the partners or paramours of a parent in a custody case, too often the background of those individuals is not given the appropriate investigation it deserves. In the case of Davis v. Fehr, Judge Hodge of Lawrence County awarded a father custody of the parties’ child due to, in part, the criminal background of mother’s boyfriend. 

Initially, father filed an emergency petition for special relief based on his concerns about mother’s boyfriend, specifically, that he had been charged with and pled guilty to endangering the welfare of a child. Upon father seeing the boyfriend at a custody exchange, he immediately sought temporary primary physical custody of the child and the parties underwent a psychological/custody evaluation.

Ultimately, the court found that mother demonstrated poor judgment by continuing to have the child around her boyfriend after a child endangerment conviction. Particularly in light of the fact that she testified that she would allow the boyfriend to babysit her children. Though father had a history of abuse in his family as well, a reference to a brother incarcerated for a sex crime, the court found that due to the incarceration of that individual that there was no immediate threat to the child. Instead, the court had a greater concern about mother’s boyfriend’s criminal history and access to the child.

Contrary to the custody evaluator’s report, the court found that both parties were meeting the daily needs of the child, but that it was father who provided the most stable environment and that due to the distance between the parties, the best interest of the child was served by father continuing to be the primary custodian.

Far too often, a custody case is viewed through the narrow prism of the mother and the father. Where there are individuals who impact the child’s life, such as grandparents, a boyfriend or girlfriend of a parent, or other extended family, it is of critical importance to address those issues early through independent investigation. By having information about those individuals available, the concerns may then be reasonably raised in the custody evaluation, and ultimately addressed by the court. 

The court must be apprised of all relevant factors related to the custodial situation and if a third party is going to be participating in that child’s life, then their background should be exposed to the court for consideration.

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Many times people come into my office or call wondering what they should do to prepare for separating from their spouse or the parent of their children. Understandably, it is a difficult decision and each person wants to position themselves to best handle the potential “fall-out” of the separation. They want to take the best steps to protect themselves and their children. One of the most important things a person can do is copy important financial documents and documentation regarding their children. On the financial side it is important to have the financial records (i.e. tax returns and financial and retirement account statements) to establish the marital assets and debts. Sometimes financial information is difficult (but not impossible) to get after a separation or divorce complaint filing. It is important to have the children’s documentation to ensure the safety and well-being of your children.

It is important to consult with an attorney to determine what steps should be taken in order to move forward with a separation and/or divorce. Each separation and/or divorce is unique. Depending upon the parties and the level of difficulties/animosity between the parties, an attorney can best advise as to the next and best steps for a separation and/or divorce.

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It is relatively rare for domestic relations cases to be decided by the Supreme Court of the United States. There is a reason for that. The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. Only when questions affecting the U.S. Constitution arise does the highest court in our country decide a question where family matters are involved.

This did occur last week when the Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both cases come out of the state of Washington and both were heard in that state’s federal court. Both cases were then appealed to the U.S. Court of Appeals for the 9^th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).

We all understand that we have freedom from unreasonable search and seizure by government personnel (usually police) investigating what they believe to be a crime. Since the late 1890s the United States has also adopted the view that people enjoy a right of privacy. Last, but not least, the U.S. Supreme Court has consistently held that people have a fundamental right to raise children in accordance with their wishes and that government intervention in family matters will be afforded the highest scrutiny.

The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. First, children are usually unreliable witnesses. But as these cases properly observe; they are usually the only witnesses where parental abuse is alleged. Second, the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may no longer love our spouse; we may not even like that person, but rarely does this attitude extend to the belief that a parent would physically abuse their own flesh and blood. But we all know it happens. Just not in our family.

In the Greene case it appears that investigators were contacted by a seven year old child’s school with information that the Father might have sexually abused the child. Both a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child. The interview took place before any warrant was obtained nor was either parent notified that an investigation was underway.

As often occurs, the child gave conflicting statements as to what occurred, but the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting and unreasonable search of her daughter without permission of either parent.

The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.

We have not read the briefs but from the reports we have examined on this issue it seems to have several red herrings. If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  The answer should be negative.

Still, these are difficult questions. We live in an age when any parent could find that an altercation with the child results in the child complaining to school officials. They are required to report to law enforcement anything that they reasonably believe constitutes abuse. We have recently encountered this in cases where the child goes to school angry at a parent and decides to “report”. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.

If you find yourself in this position, the typical response is to avoid seeking legal advice lest one “look guilty,” but these allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. Seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.

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One of the more interesting aspects of practicing family law in Pennsylvania is that each County has its own unique nuances and habits with how they adjudicate custody matters. This may range from procedural practices in how they schedule conferences and Master’s hearings to the anecdotal tendencies of the Bench. The variances between how issues are addressed in one county to another can sometimes be dramatic and other times frustrating. 

The Pennsylvania Legislature recently recast Pennsylvania’s custody laws to reflect gender neutrality, an easily identified relocation process, and a general codification of a long series of case law which had shaped tactics and practices related to custody issues. Prior to the new custody law, however, the Pennsylvania Superior Court came down solidly on the side of uniformity and struck down the application of “local practices” often employed in different counties.

B.C.S. v. J.A.S. dealt with the shared physical custody of the parties’ two minor daughters.  This York County case was appealed upon the trial court’s apparent decision to apply a heightened standard for communications between the parties which was not reflective of the custody code.  The Superior Court’s holding viewed this application of a heightened standard to “not comport with well established precedent.” The Superior Court further found that the York County trial court “misapprehended” the law by imposing a heightened standard and concluded that the court abused its discretion.

The matter of interpretation and application of multi-pronged standards, such as the determination of what constitutes the “best interests of the child,” may lead to a court having a particular tendency toward emphasizing one point over another when no particular prong should be artificially weighted to the detriment of others. This case highlights how the local customs and practices of a particular county may not necessarily follow the standards set forth in the code. 

Local customs and practices are something that every family law practitioner must take into account when evaluating a case. The Courts try to reach decisions as consistently as possible, therefore, the Superior Court's decision certainly sends a "shot across the bow" of trial courts and masters' offices that the standards drafted and passed by the Legislature are to be followed above local customs.

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Pennsylvania Family Courts have always been able to consider criminal convictions of the parties to child custody actions.  As of January 24, 2011, Pennsylvania child custody is now governed by §§5321-5340 of the Pennsylvania Code.  This new law specifically sets forth an expanded list of criminal offenses for the Court to consider and makes consideration of those offenses mandatory, rather than discretionary.

Pursuant to Section 5329, the Court shall consider convictions of the parties, as well as convictions of members of their households (emphasis added), for offenses, which include driving under the influence of drugs or alcohol, criminal homicide, aggravated assault, and rape, and determine whether there is a threat to the child.  An initial evaluation, assessing the risk, must occur and the Court must make a determination of whether a threat exists.  It is not clear who conducts the initial evaluation; could it be the Judge, a court officer, a third party?  The statute does not answer this question directly.

You may be asking yourself how the Judge will know about criminal convictions of a party to the action or especially, members of their households?  One family Court Judge noted that there will, indeed, be a reporting issue, since the statute does not state who is responsible for bringing this information to the Court.  Furthermore, there is no current, unified method for checking convictions and criminal charges in other states or for Federal crimes.  Perhaps the Court will consider requiring a verified cover sheet that includes full disclosure of criminal convictions.

Regardless of the administrative issues that may arise, an additional requirement for an evaluation and possible counseling (§ 5329(d)) related to the offense makes it reasonable to believe that child custody proceedings will become more extensive.

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Anyone who has had their chance to participate in a child custody proceeding at any level knows that the procedures are slow.  Typically courts are requiring parents to attend a parenting class and/or informal mediation before the real games begins and we get to a ruling or order.  This is frustrating but it has a purpose particularly for those who are new to the system.  But some families find that the power struggle between parents produces the need to return to court again and again; often over relatively trivial matters.  The other factor that plays into this is that in most instances, what is needed is not a complete record and adjudication but just a “decision”.  Can a four year old travel to the Middle East with his Father?  Should a nine year old play football if he has already had a concussion?  Does the father’s fiftieth family reunion take precedence over mother’s previously scheduled vacation plans?  In each of these cases, the timeliness of the decision is usually more important than the result.  This has given birth to a new business called Parent Coordination.

The parent coordinator is conventionally a lawyer or mental health profession appointed by agreement of the parties to make these “little” decisions on an informal basis and without the need for a record hearing or legal advice.  They are not appointed to change custody decisions but to smooth them out.  They are supposed to apply practicality and speed to a process that often lacks both features.  I recently watched a full hearing on whether a young child could/should travel to Lebanon for a family reunion.  The “trial” consumed about two hours of judicial time.  As a neutral observer, it occurred to me that most of the issues fully explored at trial could have been pretty careful explored in about 30 minutes of careful informal interview.

So what kinds of things do these coordinators take on?  The language from a Mercer County, NJ form agreement does a nice job of explaining:

Each party specifically agrees that the Parenting Coordinator may make recommendations regarding possible conflicts they may have on the following issues and that such recommendations are effective as orders when made and will continue in effect unless modified or set aside by the Court of jurisdiction (the parties may exclude specified items from the list):

Dates and times of pick up and delivery

Sharing of vacations and holidays

Method of pick up and delivery

Transportation to and from visitation

Participation in child care/daycare

Bedtime

Diet

Clothing

Recreation

After school and enrichment act ivies

Discipline

Health care management and cost

Alteration in schedule which do not substantially alter the basic time sharing agreement

Participation in visitation (significant others, relatives, etc.)

Other (specify)

The Parenting Coordinator will have the authority to make recommendations on the following issues.  The recommendations shall be submitted to the Court, which may approve them and enter them as Court orders.  These recommendations will be effective when adopted by the Court, and can be reviewed only upon a hearing de novo at which the moving party has the burden of proof.

Private school education and cost

Religion and religious training

Attendance at religious services

Significant changes in vacation and holiday schedules

Supervision of visitation

Time share changes which do not alter the child's primary residence

Appointment of counsel for child

Participation by parents and/or child in physical examinations.

Participation by parents and/or child in psychological examinations, assessments, and psychotherapy including selection of a therapist for the child when the parties cannot agree. The cost of psychotherapy for the child shall automatically be shared by the parties equally in the absence of any provision to the contrary in a current Court order.

Participation by the parents and/or child in alcohol and drug monitoring/testing.

The Parenting Coordinator’s role can become a powerful one and therein lies the rub.  A common complaint is that the parties have gone from too little access to judicial intervention to too much. Because they charge an hourly rate for their services, clients have had access to parent coordinators on weekends and evenings.  That can seem like a good thing but, in some instances, one party will insist that every dispute, no matter how trivial, requires a “ruling” from the parent coordinator.  This is something you may want to think about before signing up.  In many instances these agreements are tailored to limit access to parent coordination.

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We have previously noted that there are few cases more vexing than those involving one parent deciding to leave this state with a child and move to another to pursue what he/she perceives as better pastures. Clear case law has developed since 1990 that set a standard for when relocation should be granted and setting forth that once the Commonwealth has jurisdiction over a case a parent wishing to take the children to live out of state needs to file and meet some burdens to sustain their position. Over time this area of judge made law has produced many opinions, not all of which can be seen as consistent. But in a statute passed in November, 2010 and effective on January 26, 2011 the legislature has stepped in and issued some rules and procedures of its own. Ordinarily, the word of the elected legislature is the final one but under a doctrine known as separation of powers, it has been the historic province of the Courts to regulate procedures of law while the General Assembly is delegated the responsibility of deciding the “substance” of Pennsylvania law.

Much of the new statutory law is not different than what has evolved as judicially written law since the 1990 case, Gruber v. Gruber 583 A.2d 483(Pa. Super. 1990).   23 Pa. C.S. 5337 now makes clear that relocation requires either consent of all persons with custodial rights to a child or judicial approval. Those aspiring to get court approval to move with the child to another state are now required to initiate the process by serving a “notice” on other parties with custodial rights stating their intention to relocate not less than 60 days before a proposed move or 10 days after the person learns of a need to relocate (e.g. employer mandated transfer). The ten day notice applies only where the party wishing to move had no reason to know of the transfer and relocation cannot be delayed for the sixty day period required.

The notice must be very specific on some subjects. It must identify the new address where the parent intends to move (and a mailing address if it is not the same) and who else will be residing at this new address including the ages of those individuals. The new phone number must be provided if available. There must be a stated reason for the relocation. The proposed date of the move must be in the notice, as well as the identity of the new school and district. There is to be a proposed order if the existing order needs to be modified as part of the relocation. These are all good things to have adopted. Unfortunately, the statute says they are to be provided “if available” which affords a basis to file a barren notice and claim insufficient time to research these issues. This would however enhance arguments that the move is not thought out and should be rejected for that reason.

The notice does not have to be filed with the court although it certainly would help if it was since that establishes a clear date to measure the sixty days (or ten days) from. It is to be mailed certified with a return receipt. The notice is to contain a “counter-affidavit” which is actually specified in the statute. Unless the non-relocating parent files this counter-affidavit with the court within 30 days of receipt of the notice to relocate, the non-relocating parent shall be “foreclosed” from objecting to the relocation. If the objection is filed on a timely basis, the non-relocating parent is also empowered to ask that the Court enter an order denying the relocation. The objection must be verified as to its truth and requires specification if the objection is to the relocation or any modification sought as part of the relocation (as in where the distance makes the old schedule unrealistic).

If no timely counter-affidavit is filed the party wishing to move must file an affidavit that service was properly made and that the time period allowed has passed without filed objections. The return receipt card is also to be part of the affidavit and there is also to be a petition to confirm the relocation with a proposed modification order where necessary. Where an objection is properly filed to the relocation or the modification of the custody order, a hearing is to be scheduled to consider the request. The hearing is to be expedited and held before relocation is granted unless the court makes a finding that exigent circumstances justify a finding that relocation must precede the hearing.

In deciding a contested relocation case, the factors set forth in Section 5337(h) the factors are essentially the same that have evolved under the case law, such as the nature, quality and duration of the child’s relationship with each of the parents involved. Part of that is also the age and developmental needs of the child or children involved, taking into account the child’s needs. The court is to look at the financial and logistical suitability of alternative custody arrangements and to assess the child’s preference. It is also to examine whether the parents will promote or thwart the child’s continuing relationships with the other. The Court will assess whether relocation enhances the quality of life for (a) the parent proposing it and (b) the children involved. The Court is to examine motivation of the parties and to consider whether there is any history of abuse as that term is defined in the Protection from Abuse law.

The party proposing the relocation has the burden of showing that the move will promote the best interests of the child under subsection (i). Each party has the burden of showing the integrity of their motives in the litigation and failure to provide reasonable notice may be considered as indicia of deceit. This may also result in a finding of contempt and/or an assessment of attorneys fees.

Finally, we now have a definition of “relocation” albeit a subjective one. Under Section 5322 it is a residence change that significantly impairs the ability of the non-relocating party to exercise custodial rights. Whereas the prior jurisdictional standards (i.e. out of county) have been substituted for an analysis relevant to the realities of geography – a move within a county may actually pose a greater impact on custody than a move out of state. Now, any relocation which affects the non-relocating parent’s custodial rights will be subject to this statute.

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It is the 21^st century and, slowly, modern technology is making its way into the custody realm. For years, custody orders have often included provisions allowing for telephone contact between non-custodial parents and their children. For years, these provisions have been a source of contention, with non-custodial parents claiming that custodial parents block telephone access. Conversely, custodial parents often claim that the privilege of telephone contact is abused by non-custodial parents. As we discussed in an early blog, studies have shown that technology is providing an avenue for non-custodial parents (particularly fathers) to stay more involved with their children on a day-to-day basis, however, recent court decisions are showing a trend for using technology to justify significant shifts in custodial arrangements. Video chatting, among other technologies, is carving out an increasingly important role in shaping custody cases.

Various states, including Illinois and Florida, have enacted statutes allowing courts to order virtual visitation or e-visitation in custody matters. Without express statutory authority, a number of courts in other states have required custodial parents to permit non-custodial parents to communicate with their children through applications such as Skype. More troubling, however, is the recent trend in allowing parents to relocate with children, in part because the non-custodial parent can replace physical visitation with virtual visitation.

Recently, a New York judge required a mother, who planned to move with her children from New York to Florida, to arrange for Skype access between her children and their father before she was permitted to move. Debra Baker v. James Baker, 29610-2007, NYLJ 1202464436957, at *1 (Suffolk Cty. Sup., August 4, 2010). 

Similarly, a Massachusetts case in 2002 garnered headlines when a mother was permitted to move with her three young children over the objections of their very involved father. The court, in that matter, found that access to the children via video-chat would allow the father to maintain his relationship with the children. Cleri v. Cleri, Massachusetts Probate & Family Court, No. 01D-0009-D1. The father appeared on the Today show to express his outrage at the decision.

While video chat and other electronic means of communication may be beneficial in those cases where the non-custodial parent can not visit a child regularly, I question whether it is a satisfactory substitute for real visits between a parent and a child. While Skype may be an affordable alternative for a telephone call, a good old fashioned game of catch between a parent and child is priceless.

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Each year we look for new trends in how families operate and how the law comes in contact with families.  The notion that teenage children are in conflict with parents is scarcely new.  It can be traced to ancient times and is largely based upon a maturing child’s desire to become independent. When and how this natural process evolves is where the conflict comes into play.

Unfortunately, parents who live separate are rarely in synchronization when these conflicts arise.  But in the past year, we have seen an unusual rise in a disturbing trend of child empowerment. It is the child who simply “refuses” to visit or in some cases endure any contact with one parent.  There are, of course, situations where parent-child conflict gets out of hand and where that eruption produces physical or emotional abuse or where a brief “time-out” in a relationship is necessary to heal frayed emotions.  But the new trend is one of passive rejection. The child essentially announces that he or she has no interest in continuing a parental relationship.  In several of these cases we have sought counseling between the child, the estranged parent and a psychologist.  The reports we are getting back are not encouraging.  The mental health professionals are telling us that the children are in some instances outright denying that there is any problem, they do not want to visit.  In others, the children recount in vivid detail events that they perceive as a source of relationship threatening controversy where the event took place years before and have to do with the parent’s conflict and not their experience as a child.  The children also demonstrate a propensity to adopt adult labels.  The offending parent is an “alcoholic”, a “drug dealer” or “underemployed”. When the professionals try to break through these labels to ascertain the precise nature of the offending conduct, they are reporting a dearth of fact based context or huge exaggeration of relatively innocent conduct.  Meanwhile, the children are opposed to even discussion of reconciliation.  A parent is labeled as an alcoholic.  The parent agrees to abstain during visits.  The child announces that this is not really useful.  In almost each instance, the mental health professionals are reporting that reconciliation counseling is not having a salutary effect.

We wish we could find an prescription for this issue.  Thus far we are advising clients who are being rejected by parents to keep pushing for visits, even if these visits end up being pure formalities.  It is our impression that where a child cannot identify a source of the conflict that makes sense, the child is actually making some kind of cry for help.  We are insisting that children have a duty to maintain a relationship with a parent unless they can provide a plausible basis for terminating it.  Certainly, children who have the right to support certainly owe a filial duty of some kind.  But, it is a painful time for both parents and children who are having to deal with this.

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With statistics indicating that roughly half of all marriages end in divorce, it is not surprisingly that half of all children in the United States will grow up with their father’s living elsewhere. Those statistics include all children, not just those of divorced parents, as recent studies by Penn State University sociologists and demographers Valarie King and Paul Amato (highlighted in a June 16, 2010 article in USA Today) point out.

Interestingly, the study found that fathers who pay child support and were divorced from the children’s mothers were far more likely to stay involved in their children’s lives than those fathers who never married their children’s moms. The “non-resident” father, as the study suggests, is becoming increasingly active compared to the non-resident father of a generation ago: in 1976, 18% of non-resident fathers saw their kids at least weekly, while in 2002, 31% saw their kids weekly; meanwhile, the number of fathers with no weekly contact fell from 37% in 1976 to 29% in 2002.

The role of fathers in their children’s lives, particularly the lives of boys, has been well-publicized and is often cited as a contributing factor to delinquency, educational achievement, and substance abuse. That 29% of children still have no weekly contact with their fathers is disturbing, but the number is moving in the right direction.

Ultimately, a non-resident father’s tendency to stay involved is influenced by his relationship with the child’s mother. Fortunately, technology is offering fathers more opportunities to stay connected to their children, even if they can not see them every day, and the ability to bypass (or at least minimize) a contentious interaction with the child’s mother. There is no substitute for personal contact between a father and his child, but in an age where kids text, twitter, Facebook, and Skype from their cell phones, it is becoming easier for a non-resident parent to keep in touch and stay involved in the child’s life without having to go through the custodial parent.

It took 26 years to achieve an 8% decrease in the number of fathers who did not see their children on a weekly basis. During that time, we have seen a considerable evolution in family law and the emphasis on the father in raising children. It will be interesting to see whether in the eight years since the statistics were compiled that the proliferation and incorporation of technology into our every day lives brings about a sharp increase in the number of fathers in contact with their children. 

Opinions and studies will vary as to what constitutes a contact between a father and child, but in terms of whether the non-resident father is involved in that child’s life is not decided by a clinician, the child’s mother (or her lawyer), but by the child.

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We live in a world where people travel.  And often travel takes them across state lines without their realizing the consequence.  Meanwhile, we need to have rules so that no two states are deciding custody of a child at the same time. The Rennie v. Rosenthal case, decided by the Superior Court in late Spring of this year helps us understand the process.

The basic rule surrounding custody jurisdiction is that, in the first instance, custody should be decided in the state where the child has been living.  This is called the “home state”.  It is where the child is spending most of his or her time.  But once a state assumes jurisdiction over a child, that state is supposed to retain jurisdiction until another state becomes a more appropriate place for child decisions to be made.  The Rennie case illustrates that jurisdiction tends to stick where it starts even in situations where the child has more contacts with another state.

Mother and Father are married in California in 1996.  They move to Pennsylvania six months later and a child is born here in September, 1997.  Custody is contentious and there is a series of orders entered beginning in Fall, 1998. One of the orders entered in 2003 says that Philadelphia County will retain jurisdiction.  Just about the same time the mother moves to Minnesota with the child. Two more orders are entered in Pennsylvania in 2004 and 2007 relating to the child.  Both orders were agreed to by the parties but said nothing more about Pennsylvania retaining jurisdiction. 

In May, 2008 Father filed for primary physical custody.  He was still living in Pennsylvania.  By this time the child has been living in Minnesota for five years.  So Mother responded with a request for the case to be transferred to Minnesota.  Almost a year later a hearing was held concerning this issue.  By this time the child had been living in Minnesota for six years. The Court denied the transfer but certified that Mother’s arguments merited appellate review.

The law in question is what is termed a uniform law. That means that states try to mirror its provisions throughout the country so there are not conflicting standards on a subject as one travels from state to state. Just about every state in the US has adopted a version of the 2004 Uniform Child Custody Jurisdiction and Enforcement Act.

Mother’s argument in this instance was that the child lived in Pennsylvania for only one year and had resided in Minnesota for six.  Accordingly, most of the significant contacts between the child and any jurisdiction involved Minnesota.

But the Court in Pennsylvania parsed the language of the statute involved carefully.  Under Section 5422(a)(1) of the Act a court has made an initial custody determination in a case retains jurisdiction over the child until “neither the child nor the child and one parent have a significant connection with Pennsylvania and substantial evidence concerning the child’s care, protection, training, and personal relationships is no longer available here.”

The term “significant connection” is not defined by the statute.  But the Superior Court reasoned that so long as the child and at least one parent have a meaningful relationship to the Commonwealth custody jurisdiction should remain here.  The Court found that the child’s five year residence in Pennsylvania was significant.  The Court also seemed swayed by the fact that the child spends 4-6 weeks in Pennsylvania each year with her Father.  She has grandparents here and step sisters resulting from Father’s recent marriage. The Court explicitly states that where one parent remains in Pennsylvania and has a significant connection to the child jurisdiction should not be changed.

Curiously, the Court takes on a ruling in 2008 by another panel of the Superior Court in Billhime v. Billhime.  In that case the trial court was reversed for retaining jurisdiction in a case where the child had been living in Florida for approximately four years.  In Billhime, the Superior Court found that the test over jurisdiction centered upon where the most significant connections for the child rested.  Rennie says that the panel deciding Billhime misread the statute.  The appellant in Rennie asked the Superior Court to reconcile Billhime and Rennie.  The Court declined in an order entered in early July, 2010.

What happened here?  It’s tough to say.  Sometimes the facts sway these kinds of cases.  Had Mother filed a request for Pennsylvania to relinquish jurisdiction before Father filed for contempt of the existing order and modification, we suspect that request would have been granted.  But here, she is arguing for the Court to relinquish this case after she was found to have violated the Pennsylvania Order and after Father had asked for modification.  Commentators in this field assert that custody should be decided in that state where the most evidence can be found.  Clearly, after five years of residence, Minnesota would appear to have the trump card. But not in this case.  Father gets to seek modification here, although that trial will have to begin more than two years after he started the process.

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The explosion of social networking websites in recent years has had some unintended consequences for many people: the details of their life are being downloaded as evidence for Court.

The ease of accessibility to your personal life is arguably the greatest aspect of social networking, but also poses its greatest risk to its users. Not surprisingly, some people make some questionable choices about the content they post on their page and that content – pictures, video, audio, links – are finding a life beyond the internet as exhibits to custody petitions, impeaching the testimony of witnesses, or proof of drug or alcohol abuse. In fact, a February 2010 survey of members of the American Academy for Matrimonial Lawyers found that 81% of its members have identified an increase in the use of social media data as evidence in court cases.

With sites such as Facebook engaged in a seemingly endless reexamination of their privacy rules, people should be extremely careful about what they post, content associated with them on other people’s pages, and who has access to that content. While they may not post a single incriminating item themselves, they need to be vigilant in removing tags from other people’s content and insulating themselves from embarrassing, incriminating, or scandalous information on a website. 

If you engage in the type of behavior that might prove to be good fodder in a custody battle, besides taking some time to reexamine your choices, the next best advice is to move your life off-line for a while. The ease of disseminating information on social networking sites should not lead you to get complacent as to how you’re portraying yourself on-line.

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Please take a look at a recent blog entry written by Robert Epstein, a family law attorney in Fox Rothschild’s Roseland, New Jersey office. Robert wrote about the role of religion in divorce and custody cases and gives some insight into how religious decisions are made in New Jersey custody cases.

Recently, a colleague in my office had the experience of litigating a religious issue in a Pennsylvania custody case. The mother had made all the arrangements pertaining to the child’s first communion, but the father objected, wanting instead to bring the child up in a different religious tradition.

Unlike New Jersey, Pennsylvania does not have a definable way to determine who has the ability to educate or bring up the child in their particular religious traditions, instead, religious upbringing is a “legal custody” decision which usually requires both parties to agree to a particular decision (also under this analysis – school and educational decisions, medical decisions).

Anecdotally, we anticipate judges choosing to not interfere with these issues – unless the child’s health and safety are at risk, they will not intervene and decide what religious tradition the child should be raised in or whether the child should be barred from participating in a religious ceremony. In fact, the standard is that the ceremony will proceed unless the objecting party can show that the child will experience substantial harm, physically or mentally, at any time now or in the future.

Ultimately, my colleague’s case turned on the mother’s apparent deceit in how she registered the child for Sunday School, nevertheless, had the judge reached the merits of the issue, there were few facts available to the father to prevent the child’s first communion from proceeding.

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Parental alienation is one of the most common, and most difficult to prove, complaints a family law attorney gets from a client.

Clients often, and not without justification, allege that the other party is actively trying to interfere and undermine their relationship with their child. The sad part is that while they are often right in their assessment of the other parent's action, proving alienation in court- usually in the context of contempt of a custody order- is difficult from the very basic standpoint of testimony. The parent alleging alienation will cite examples of behavior, comments, overt acts, subtle innuendo - all kinds of things that illustrate the purposeful action of the other parent to damage the parent/child relationship. The defense? "She's lying. I didn't do any of those things."

Generally, alienation cases are infrequently brought because of the difficulty in proving them. Practically speaking, what can a judge really do to punish the other party? Attorney's fees? A change in custody schedule? Jail? Unfortunately, even a well-crafted Court Order cannot prevent a stubborn parent from shooting off their mouth about the other parent in front of their child.

Recently, however, we have begun to notice some efforts to deal with parental alienation. Notably, the Overcoming Barriers Family Camp, operated by President Peggie Ward, PhD. Dr. Ward is a psychologist and Co-Founder of the Co-Parenting Assessment Center in Natick, Massachusetts and helped create Overcoming Barriers as a way to "help children and families where one or more children are in danger of losing a relationship (or have lost a relationship) with one of his/her parents." Initial reports have been positive and it will interesting to see whether this program spawns similar programs through out the country. You can find more information on Overcoming Barriers at http://www.overcomingbarriers.org/.

These programs are not without their detractors or controversy. The Leadership Council on Child Abuse and Interpersonal Violence has been critical of organizations such as the Rachel Foundation for Family Reintegration located in Kerrville, Texas. A February 2, 2009 news release on their position can be found at: http://www.leadershipcouncil.org/1/med/%20pr2_09.html. The Rachel Foundation strives to overcome, among other forms of abuse, the "abduction of the mind" which may occur in "high-conflict divorce." The Leadership Council, however, found that some of the "therapeutic" techniques skewed toward "brainwashing" and found them overly coercive.

Despite criticism, controversy, or praise, these programs attempt to address a need which is difficult to confront within the confines of the judicial process. I will be curious to see the data and information developed by Overcoming Barriers. If it can continue to replicate the initial success it has experienced thus far, I would not be surprised to see similar programs develop across the country and become instruments utilized by the Courts.

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Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

 So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

 In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

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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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