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

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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