Last Fall brought us a decision from the Supreme Court of Pennsylvania holding that a grandparent did not have standing to terminate a Father’s parental rights incident to an adoption. Last week brought us a Superior Court case in which the appeal comes from a Mother and her own Father in a custody case involving a 12-year-old child.

Mother had a girlfriend. To show the seriousness of their commitment, Mother and Girlfriend decided they would adopt each other’s children. The family remained intact for 13 years until April, 2011. A few months after the split, Girlfriend filed to obtain sole legal and physical custody of her natural child (a son) and primary physical custody of Mother’s child, a daughter. Mother counterclaimed for primary custody of both children.

After some initial skirmishes in the Montgomery County courts, a consent order was formed in August, 2012. Each parent would keep primary custody of her natural child. Problems began to arise between Mother and her adopted son and a parent coordinator was appointed who thought psychiatric and psychological support was necessary. In addition, a custody evaluation was ordered at the instigation of the parent coordinator.

Matters boiled over and on May 27, 2013, Mother shot Girlfriend in the presence of both minor children. Mother was charged with attempted homicide and endangering the welfare of the children. She was sentenced to a lengthy prison term exceeding 20 years. Mother was prohibited from communicating with her adopted son and from discussing the incident with her own natural child. Mother’s assertion to this day is that she acted in self-defense.

Once the shooting took place, Girlfriend (who had been shot by Mother) filed an abuse action and emergency custody petition. Mother’s own Father (Grandfather) filed a petition to intervene, requesting that he have custody of his granddaughter, the natural child of Mother. His allegation was that Girlfriend was tolerating physical abuse of the 11-year-old girl by her adoptive brother. Girlfriend, having recovered from the gunshot, asserted that the allegations were false and that Grandfather had no standing. Grandfather amended his petition in the wake of the objections to allege other incidents of abuse and to assert a right to custody under 23 Pa.C.S. 5325(2). Ironically, that ground as a basis for custody was declared unconstitutional by the Supreme Court while this appeal was pending. See. D.P. v. G.J.P. 146 A.3d 204 (Pa. 2016). The Superior Court notes that Girlfriend did not preserve the standing issue at trial so that it could not be asserted on this appeal. Judge Strassburger dissents on the standing issue but let’s keep our story on track.

Eight days after the shooting, the Trial Court entered an Order granting custody of the daughter to the Grandfather. (Mother’s father). A local attorney was appointed as child advocate and it was ordered that only the advocate could discuss the incident where the girl witnessed his natural mother shoot her adoptive parent.

A two-day custody trial followed. As the Superior Court notes, Grandfather needed to show an unaddressed risk of harm to have standing under 23 Pa.C.S. 5324. The Trial Court concluded that the risk was not sufficient to afford Grandfather the standing to seek custody he had filed to obtain. Accordingly, it granted the Girlfriend’s preliminary objection and therefore, concluded that the best interest analysis set forth in 23 Pa.C.S. 5328(a) was superfluous.

While all of this was awaiting trial, there was no interim custody order. The Trial Court instructed the attorneys and the child advocate to craft some form of physical contact. After two visits totaling 36 hours, the child advocate suspended Grandfather’s access because her directives were not being followed. Shortly after this occurred Girlfriend filed for sole legal and physical custody of both children. Another hearing was held, and in October, 2014 (17 months after the shooting) Girlfriend was awarded sole physical custody of both children. Mother was to have legal custody on a “cause shown” basis if she disagreed with Girlfriend’s legal decisions. All communication between Mother and daughter were to be reviewed and edited by the child advocate.

Grandfather did not appeal but filed another petition to modify which appears to complain about his absence of access. He was afforded another hearing where he expressed concern that the son was physically dangerous to the daughter in Girlfriend’s care. Mother also filed a request for phone contact with her daughter from prison. In August 2015, both requests were denied following another hearing. Postal contact was permitted by Mother subject to control by the child advocate.

Mother and Grandfather appealed. Mother asserted there were constitutional issues at stake as she had a fundamental right to parent. While the Superior Court found her constitutional argument to be fragmented, it did find that Mother’s claims of innocence in the shooting incident should not, alone, prevent contact between parent and child. The standard found in the statute is one of whether there is a “threat” from contact. 23 Pa.C.S. 5329(a) and (d). The Superior Court found that the Trial Court had not devoted enough energy to analysis of what it terms “prison visits” under Etter v.Rose 684 A.2d 1092,1093 (Pa.Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011).

A second source of controversy was the level of authority afforded the child advocate. The Appellate Court characterized the advocates regulation of contact between Mother and daughter as “overreach[ing]” and “micromanaged.” The Court concludes that this level of delegation, including the management of all communication between parent and child as improper. The Court notes that the title of “advocate” is not defined and cannot be equated with that of guardian ad litem. The term advocate is found in 42 Pa.C.S. 5983 and relates to involvement of children in the criminal law system as either victims or material witnesses. The advocate is described by the opinion as a holistic approach in contrast to the specific missions of guardian ad litem under 23 Pa.C.S. 5334 or attorney for the child under 23 Pa.C.S. 5335. The Court notes that from the record it appeared that the advocate acted at times as legal counsel and, at other times more akin to guardian ad litem. She appeared as both counsel and witness in these proceedings and was cross examined while testifying. The Supreme Court had decided in an order issued in September, 2013 that the guardian ad litem statute would be suspended to the extent that it required the G.A.L. to be an attorney or permitted “best” interests analysis to be conflated with “legal interests” or permitted the G.A.L. to present witnesses and participate in the trial in any role other than as a witness. The message this rule seemed to telegraph was that if you want to participate in a trial as a lawyer, you proceed under Section 5335. Section 5334 means you will sit, listen to the trial and take the stand to express what you consider to be the best interests of your subject child. On remand, the Trial Court was directed to carefully craft its order defining the scope of the attorney-advocates role.

As for the appeal of Grandfather, it shared many of the waiver problems found in Mother’s appeal. Both were presented pro se and the Court opined that the Pa.R.A.P. 1925(b) statements were not well articulated.

Here the reasoning gets somewhat muddled. Bear in mind that the majority has affirmed the Trial Court ruling that Grandfather did not attain the standard of showing that the children lacked sufficient parental authority and control. So it was motoring under the partial custody standard and doing so because Girlfriend had not asserted lack of standing to seek partial custody in response to Grandfather’s filing. The Trial Court denied partial custody because his desire to have contact with his granddaughter was not in the child’s interest because of Grandfather’s (a) animosity toward Girlfriend (b) his steadfast belief that his daughter was not guilty of a crime when she shot Girlfriend and (c) his efforts to control his granddaughter’s testimony. The Trial Court also felt that Grandfather was inclined to try to sow discontent between Girlfriend and the eleven-year-old daughter (by adoption). The Superior Court finds that there was scant evidence to support these conclusions and while it defers to Trial Courts in these types of analysis, the analysis must be borne of evidence presented rather than supposition. It also held that under Section 5328(c)(1)(iii) the Trial Court must perform the 16 factor analysis that has become a part of all custody determinations.

Specifically, while condemning Grandfather’s use of the term “Adoptive Mother” in the case, the Court did not find this so egregious as to merit suspension of contact. The Court found no record that Grandfather had attempted to discuss or persuade his granddaughter to take a side in the criminal proceeding against her natural mother. This was ascribed to a “supposition” on the part of the child advocate rather than any evidence of record. The Grandfather had attempted to arrange for the child to meet with Mother’s criminal counsel for purposes of an interview but that interview was blocked by a subsequent court order.

In the end, the appellate court expresses concern that Girlfriend is not exercising sufficient control over her son to the possible risk of her daughter. The Superior Court described some of the incidents and believed the conduct between the sibling children involved more than innocent horseplay. Thus, it reversed not only to have a full evaluation of Mother’s rights while incarcerated but Grandfather’s rights under Section 5328(a). This makes for an interesting rehearing, as the law of standing is different than it was at the last hearing.

For better or for worse, this is what “new age” custody proceedings are going to entail; an unmarried couple, who adopt and then split badly, even violently. The children involved present their own issues related to physical conflict. A grandfather tries to intervene and an advocate is criticized both for the nature of her role and for overzealousness in the protection of an 11 year old child. Bear in mind, the circumstance of an adoption is the only thing that bars to two natural fathers from appearing on the scene to add to the mele. Note as well that this action began in November, 2011. It was temporarily settled in August, 2012 but within eight months gunfire erupted, setting in motion a piece of litigation that has subsisted for more than 3.5 years and is headed back to trial. The one child affected is described as “now 12”. That would mean that she was perhaps 7 when her world fell apart.

Note Bene:   We have been longstanding critics of the business of identifying custody litigants and children by initials. The author has been told this is a losing battle. But this opinion, for those willing to endure its 45 page analysis, was a special form of suffering. For 45 pages, here is what one read:

M.G. v. L.D.; Appeal of C.B.D. 2017 Pa. Super 29 (2/8/2017)

L.D.   Mother of M.G.D.. Adoptive parent of E.G.D.

M.G.  Mother of E.G.D. Adoptive parent of M.G.D.

C.B.D. Father of L.D.; Grandfather to E.G.D. and (by adoption) E.G.D.

As I have explained plaintively to any appellate judge who grants me audience, the children in this case are the soldiers in the trenches of modern day custody wars. They are gassed with parental acrimony nearly every day. They don’t read the Atlantic Reporter and their friends don’t either. In this case, two children have lived a life of newspaper headlines and criminal trials culminating in a long-term prison sentence. The least of their concerns is whether their identity is revealed in appellate paper books and resulting opinions. Meanwhile, if called upon to explain the precedential effect of this reported case in a pending case, this lawyer would be required to emit enough letters to daze even a lifetime “bingo addict.” The addict at least has a chance at a prize.

 

We live in a day when reported (i.e. precedential) decisions are rare and decisions touching upon important philosophical differences are like hen’s teeth. But on November 18 the planets aligned to give us Hanrahan v. Bakker, a 2-1 panel decision with Judges Ford Elliott and Dubow in the majority and Jenkins in dissent. The subject; how much child support is “enough” when the combined incomes exceed $15,000,000.

We have seen this before. Branch v. Jackson involved a major league baseball player. In that case there was a large support order and money deposited in an UTMA account for an unspecified “later.” This writer was troubled by support paid into trust because that really does transfigure the basic premise of the income shares approach to child support. But the result could be explained when one sees that the average career span of a baseball player in the majors is about 5.5 years. Statistics tell us that the rainy day is coming and that for professional athletes there is rarely a “second act.” Meanwhile we know that childhood is 18 years by law.

Hanrahan is different. Both parties are lawyers sharing physical custody of two children. Mother earned approximately $105-180,000. Father’s earnings as a specialist in corporate takeovers with an established Wilmington law firm ran a gamut from 1,083,000 in 2010, $4,010,000 in 2009; $2,303,000 in 2011 and $15,592,000 in 2012.

The parties divorced in 2009 after 17 years of marriage. The opinion references but does not describe income or lifestyle during the marriage. The property settlement agreement called for an annual exchange of tax returns and an annual adjustment of support based on net income and Pennsylvania guidelines. It also contained a counsel fee provision should there be a breach of the agreement.

All proceeded smoothly in 2009 which is to say the calculation was done and the support adjusted to $15,878 per month. In 2010 father’s income declined sharply but again they followed the guideline formula and support fell to $3700 a month. In 2011 Father’s income was $2,303,000 and the support was calculated as $7,851 per month.

2012 was the year the mold broke. With $15,600,000 in income and mother’s reported as $105,000 Father wrote to Mother stating that he ran the calculation but that the number was “way beyond” any realistic reasonable needs. He also generously proposed not to reduce the support below $7,851 per month. It should be noted that Father also covered about $6,000 a month in tuitions, camp, and activities in addition to the support specified by calculation.

To complicate matters Father also took $2,500,000 of the 2012 earnings and clapped it into an irrevocable trust for the children. As if that doesn’t make it complex enough, the partners of his firm agreed to fund a scholarship in honor of the law firm’s founding partner. The “contribution” to this cause for Father was $150,000 but the firm reimbursed him for the contribution.

As one might expect, $14,000 a month in support and direct payments did not seem adequate to Mother and she filed to enforce the agreement. Father filed an unspecified counterclaim and the matter was heard in January, 2015. Over Father’s objection that the income level made the guideline presumptive amount under Pa. R.C.P. 1910.16-3.1 absurdly unrealistic, the Delaware County Common Pleas Court came back with an order ranging from $52-59,000 per month from May 2013 through April 2014. But the Court simultaneously ordered Mother to deposit $30,000 per month from that sum into Uniform Transfer to Minor Act accounts for the children where she would act as custodian. It also found that Father had breached the agreement and made an award of attorneys’ fees pursuant to the agreement. Both parties appealed.

Mother’s appeal settled on the issue of putting the support money into an UTMA account. Her argument was that every other support order in Pennsylvania affords a recipient unfettered access to the support awarded. On this subject the majority agreed, noting that children should not be made to wait for child support and that UTMA is a gifting mechanism with a trust aspect in contrast to child support which is an obligation of parenthood. The UTMA statute declares that these “gifts” are not a substitution for child support. 20 Pa.C.S. 5314(c). The UTMA funds are secondary to the underlying duty to support from current resources. Sternlicht v. Sternlicht 822 A.2d 732,737 (Pa.Super, 2003) aff’d 876 A.2d 904 (Pa. 2005). That aspect of the order was reversed.

The trial court had made a downward deviation in the support amount by reason of the $2,500,000 Father had deposited into trust for the children. Mother asserted that this also was an unwarranted intrusion into the support formula. The trial court had reviewed the deviation factors under Pa.R.C.P. 1910.16-3.1(a)(3) and concluded that the trust was a “relevant factor” warranting deviation. Here the Superior Court again relied upon cases noting that the support obligation was not reduced because of the child’s own property. This contribution was made voluntarily at a time when Father knew he had a child support obligation. See Portugal v. Portugal, 798 A.2d 246 (Pa. Super, 2002)(a parent’s voluntary retirement contributions are still income available for support). The downward deviation was reversed.

On the counsel fee award, the trial court had found this to be a reasonable dispute and not a breach of the agreement. The Superior Court disagreed finding that Father covenanted to pay according to the guidelines and that his position that the guidelines were now absurd or confiscatory was without legal basis. This denial of fees was also reversed.

Father’s appeal starts with a claim that the 1994 decision in Ball v. Minnick, 648 A.2d 1192 (Pa. 1992) somehow eliminated reasonable needs as a standard for support. The Superior Court held that guidelines and the rebuttable presumption of their applicability had been part of a statutory scheme approved by Act 66 in 1985 and remained the law. The income shares model had been adopted in 1989. Ball v. Minnick had established that where the guidelines stopped (then at $10,000 combined net income) the formula of Melzer v. Witsberger, 480 A.2d A.2d 991 (Pa. 1984) would prevail. But Ball was overruled in 2010 by adoption of Pa. R.C.P. 1910-3.1 which stated that all support cases were to be first analyzed through an income shares model after which the courts could evaluate whether deviation was appropriate. Father placed his reliance upon use of the terms “reasonable needs” in the statutory framework of 23 Pa.C.S. 4322. But the Superior Court responded that the guideline formula adopted in the Rules was the formula adopted for determining reasonable needs. It further noted that reasonable needs were not a deviation factor specified in the existing rules.

Along the same lines Father asserted the deviation was appropriate because this support result was an aberration of the standard of living of the parties. Pa.R.C.P. 1910.16-5(b)(7). He also borrowed from the trial court’s reliance on “other factors” to deviate. 1910.16-5(b)(9). The trial court appears to have followed the rainy day reasoning of Branch v. Jackson. Essentially, the argument there was that funds needed to be set aside for a day when incomes were likely to be reduced. The amended trial court order referenced the children’s’ post majority needs. The analysis here seems somewhat muddled but the clear import is that post majority needs and standards of living are not part of a child support analysis.

What makes this case interesting is not so much the result but the trend. We are seeing lots of disparity in annual earnings on the part of more and more people. In this case, even Mother’s income varied markedly. The support amount (excluding the add ons) over three years varied from $3,700 to $59,000 a month. Assuming a caring, honest and intelligent recipient what is that person to do. We can hope the payee would not spend every dollar received, but we are trusting that the right thing will be done with some fairly astronomical levels of child support. If the payee took the excess over the mean level of support (roughly $8300 a month) and purchased a $500,000 home with the excess cash accumulated over the 12 months of “surplus” whose house is it when the children are emancipated.

When large sums like that in Hanrahan come into play, would it not make sense for the court to appoint a guardian ad litem to at least make some suggestions or perhaps ask some questions. Certainly this should not be an appointment to wrest control of the support from the payee but we have all heard the stories, whether apocryphal or not of fortunes wasted on cashmere socks and fast cars. As a business lawyer Mr. Hanrahan probably still has a few more seasons in the big leagues of mergers and acquisitions. But wide receiver Michael Jackson was drafted in 1991 and finished in 1998. We don’t know how Ms. Branch’s children by Mr. Jackson ended up but even the best of us certainly would be tempted to think that the father of her children might become the next Jerry Rice (20 seasons). If the money we call child support really is for the kids, some caution should be taken in circumstances where the income level is erratic and the source fleeting. A GAL would be money well spent to assure that children do not ride the road from rags to riches back to rags when that calamity could be avoided.

The dissenting opinion of Judge Jenkins would go even farther. She believed that a downward justification was warranted based upon the funding of the trust and she also approved of the notion that it was in the best interests of the children for funds to be segregated into a UTMA account.

I was researching material for this blog when courtesy of some “cookie” embedded in a website, I was treated to an opportunity to save substantially on my divorce legal fees by signing on for a service that offered me “al a carte” divorce services by law firms standing by to help me without the “unnecessary” cost associated with full service divorce representation. Sounds appealing, right? Why buy the whole car when only the tires need to be replaced?

So as the reader has probably already surmised, this piece is being written by one of those pricey full service divorce lawyers. Thus, as the Latin’s would say Caveat emptor (let the buyer or in this case the reader, beware).

The typical person in an unhappy marriage faces a myriad of issues. Custody. Division of property and the debt that accompanies it. Division of future assets like pensions or other retirement plans; child support; spousal support; alimony; health insurance; life insurance. The list goes on but you get the point.

If each of these issues was wholly independent of the other, a la carte divorce services might make more sense. But, that is usually not the case. So let’s take custody. That should be an easy topic to sever from the rest, right? Kids are not for sale and so money issues should not really tie into custody.

Well, not so fast. Do you have primary custody? Then you will probably be a head of household for tax rates and you will be able to deduct the kids on your return even though the other parent contributes more to child support than you do. Do you have shared custody? Then your tax treatment is probably going to be different. Do you have the kiddies more than 146 nights per year? Then your support is subject to adjustment. If you have primary custody of minor children that’s a reason why you should get a greater percentage of the marital estate. At least that’s what the statute says. Spousal support and alimony pendent lite (which is to say spousal support with a Latin spelling) are calculated differently if you are getting child support and you get child support because of how much custody you have of your children. The parent with primary custody will want to ask whether there is life or disability insurance should the other parent experience disability or its more lasting cousin, death.

So you hire a la carte lawyer to help you draft a custody stipulation. Is that lawyer also going to assess and advise on the issues I just described? You want to say yes but you know better.

Let’s use property division as another example. Mother keeps the house subject to the mortgage because she will have primary custody. Do you want Mother to refinance the house to get your name off the mortgage or are you OK with having an extra $200,000 in debt sitting on your Experian credit report for a house that’s now in her name? And if Mother takes up with Mr. Loser and together they decide not to pay the mortgage on that home where the kids live, do you know whose credit rating is going to be dinged and who might be liable if the house sells for less than the principal balance due in foreclosure? One guess only.

In fairy tales, everything turns out right. That’s why you don’t read a lot about lawyers in books by the Grimm Brothers or Hans Christian Andersen. Lawyers came about because things go wrong. Like the parent who signed up to pay for his kids’ college in 2006 thinking that he had a solid job paying him $200,000 a year. He loved his kids and with $12,000 a month in after tax income he felt confident that he could afford it. But then came the Great Recession and it has now been eight years since he cracked $140,000 a year in income. Meanwhile his loving children all chose to go to private universities and so far they have averaged 6 years to complete a four-year program. He didn’t need a lawyer, right? So now he wanders the streets with a $250,000 judgment accruing interest at 6% that has almost no chance of being addressed in a bankruptcy. A lawyer might have suggested capitating the cost of enrollment, the length of enrollment and a failsafe provision in case he lost his job. But, this 21st century Dr. Pangloss trusted that all would be well.

Some readers will call these war stories a form of fear mongering. Bad things don’t always happen. The entire life insurance industry is built around the premise that in any given year only a small fraction of people actually die. Only a small portion of legal agreements blow up in bad ways. But when they do, they can inflict a lifetime of financial pain. The trouble with on line or over the phone legal advice is that you’ll never be able to find the lawyer or algorithm that gave it to you when it turns out badly.

There are times when two conversations with two wholly separate individuals causes a person to distill some interesting new thoughts. Earlier this month I had lunch with a woman who has long run the intake program for the Domestic Relations Office in Chester County. We were discussing the triumphs and tragedies associated with the daily business of processing support cases where both emotions and money are at stake. My lunch companion, Rae Morgan, observed that one of the real problems they encounter is that because the litigants are so nervous about going to court over support they lose their ability to listen and appropriately process even simple instructions.

Two weeks later my lunch companion was Judge Daniel Clifford from Montgomery County. Dan is new to the judging business but a long time divorce practitioner before he was elected to the bench in January of this year. He has been hearing a lot of custody cases and we spent some time discussing how his perspective has changed as he transitioned from before the bench to behind it. His comments echoed those of Rae Morgan. Namely, that he wishes that litigants could observe their own testimony because in many instances what they were advocating was really not consistent with a child’s best interest. Put another way, their anxiety about the hearing often deprived them of what might otherwise seem common sense.

In both instances we spoke about how lawyers can try to help people understand how the judicial process works and how they could be less reactive to it. But then today my inbox brought me an article from Popsugar captioned “30 Things that Children of Divorce Wish Their Parents Knew” I commend every parent to take a few minutes to look at this because a great deal of it would address the kinds of concerns Judge Clifford was talking about in a custody setting. I will edit what I saw as editors tend to do. Their 30 became my 15.

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”
  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.
  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.
  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.
  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.
  6. It really, really hurts when you don’t show up for something we have scheduled.
  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”
  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.
  9. I am not staying with you to provide information about what the other parent is doing.
  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.
  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.
  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.
  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.
  14. If there is bad news, please don’t ask me to be the courier.
  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

My colleague, Mark Ashton, reported on the case of D.P. & B.P. v. G.J.P. & A.P., and identified how the Court’s opinion addressed on a limited basis how Section 3525(2) was, in part, unconstitutional by placing an unreasonable restriction on the parents to raise the children as they deem appropriate, including restricting the children’s exposure to their grandparents.  This decision left open many questions about what happens in circumstances other than separation of six months or more which will likely need to be addressed in the future as grandparents seeking custody re-frame their arguments based on this decision.

One point that I found compelling was that this decision articulated a rejection of the implicit idea that separation, in of itself, equated an unfitness of the parents. As the statute was written, if parties were separated by six months or more then grandparents have standing to bring a custody action. The Court recognized that the statute basically treated separation as a “flaw” and “implicit presumption of unfitness” of the parent when in reality there are numerous parents who parent very effectively while separated and/or divorced, while there are couples in intact marriages who are terrible parents. The Court felt that being separated did not justify a third party needing to step in for the children’s best interests or for the state to exercise parens patrie powers. Separation does not equate abuse, neglect, or an inability to perform parental duties.

Finally, the court reiterated prior case law that when a custody dispute arises between parents and a third party, “the evidentiary scale is tipped, and tipped hard, to the parents’ side.” So, as pointed out in Mark’s blog on this case, the door has been cracked for dealing with grandparents’ standing in cases, there is no doubt that the desire of the parents will create a significant hurdle for the grandparents to overcome even if they establish standing.

On September 9, 2016 the Pennsylvania Supreme Court ruled that portions of the current child custody law were an unconstitutional interference with the fundamental right of parents to raise their children in accordance with their own standards and beliefs. It involves some unusual facts and a quirky portion of the custody law defining when grandparents have standing to seek an award of partial physical custody.

The section in controversy, was enacted in 2010. It relates only to requests for partial custody. In D.P. and B.P. v. G.J.P. and A.P., the mother and father of the subject children had separated for more than six months but no divorce action had been filed. Referencing Section 5325(2) the grandparents brought their action for partial physical custody of the children. Both mother and father filed a motion to dismiss this action asserting that they jointly objected to such an award. The trial court in Westmoreland County considered the objections and, citing the US Supreme Court’s 2000 ruling in Troxel v. Granville, determined that because this was an interference with parental custodial rights deemed fundamental as a matter of law, the statute conferring these rights was subject to strict scrutiny. 530 U.S. 57,65. Under that standard, the state had a duty to demonstrate a compelling need to legislate in this area and the grandparents had failed to show the state had met that standard in crafting Section 5325(2). The only statutory threshold to invade the fundamental rights of the parents to raise their children without interference was a separation of six months. The Court noted that this case involved no assertion that the children were not adequately cared for or that there was other reason for legislative action to protect the children.

The trial court ruling was immediately appealed to the Supreme Court which heard argument in early April. In an analysis by Chief Justice Saylor, the high court concluded that in circumstances where a parent was deceased (Sec 5325(1)) or where a child had actually lived with a grandparent, there was a compelling basis for state action. But, where, as here, the parents actually agreed that grandparent custody was not in the child’s best interests, the state had no basis to interfere with that determination. The majority decision was careful to restrict the holding to cases where parents had separated, appearing to preserve the right of grandparents to make custodial claims once a divorce was filed. Dissenting opinions by Justices Baer and Wecht argue that this distinction was not sustainable under a strict scrutiny standard as the existence of a divorce filing was not more a basis to warrant judicial intervention in family affairs than a separation of six months.

This is an interesting crack in the door and one which invites eventual removal of the door. The dissents ask questions such as: suppose the parents disagree about grandparent visits or file for divorce? Is the door now open? Suppose the parents never did marry or even live together? This heads into even more controversial territory which is fast coming upon us. Who is a parent for purposes of custody and support? Genetic testing affords us the ability to determine this in a biological sense. But we have started to see more and more cases working around adults acting in some form of loco parentis. Obviously, grandparents and, according to the statute great grandparents have their own rights. In a world where “parents” move freely from one relationship to another and children often “attach” to these adults, is there a limit to how many participants can be involved before it becomes clear that the litigation is itself a harm to the child? This is a question which was not before the court but it looms larger every day.

D.P. and B.P. vs. G.J.P. and A.P.     Journal-53-2016             25 W.A.P. 2015   (9/9/16)

 

We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning.  What could be worse than having a court decide that you are contemptible?

In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order.  The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt.  The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge.  The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle.  I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more.  Who wins contempt proceedings?  Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak.  So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.

This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended.  The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel.  That begot a request for a continuance to prepare.

My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings.  But in contempt court the rules work to the advantage of the party who plays games.  You see, they are entitled to a specific pleading setting forth how they violated the court’s orders.  Do they have to specify their defenses?  Not in Pennsylvania.  The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated.  In candor, some of them had merit.  But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called.  The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be.  Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order?  That would be efficient.

Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees.  But what about damages caused by a party’s refusal to comply with a court order?  You won’t find that remedy in the statute.  Support law is even worse.  Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation.  You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply.  Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award.  Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503.  The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.

The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention.  Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance.  But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse.  It takes what is supposed to be a pointed procedure and dulls it beyond recognition.

Last week Newsweek published its annual rankings of America’s Top High Schools.  This is a much awaited publication for those with children of that age and it is undoubtedly well circulated in the admissions offices of our colleges and universities.

These compilations also commonly hit the family lawyer’s desk whenever there is a hot dispute over primary custody or relocation. In reading the recent history of relocation cases, the decided focus of Superior Court cases is on the matter of how the relocation benefits the child and in many instances we are given these rating compilations by custody litigants who want to show that a new school would be “better” for the child or the present placement is “fine.”

Many judges and hearing officers deciding these cases will admit these magazines “for what their worth.” Technically, there are myriad evidentiary problems with any “ranking.”  The content of the magazine is itself hearsay.  The person making the statement that “Quaker Valley is the 271st best high school in the nation.” is not a named person at all.  It is a magazine.  So we don’t know the identity of the person who decided that Quaker Valley was No. 271 while Penncrest was No. 276.  We also don’t know the specifics of how this was decided.  The article will tell you about general parameters employed such as college matriculation and graduation rates and average SAT scores.  But the typical editors who do the ranking don’t tell us how these metrics are weighted or whether a planetarium is a plus while a ceramics kiln is neutral.  Lawyers who stand up and object to the admission of these rankings have excellent reasons why the objection should be sustained and most law school professors would harshly grade any student of Evidence who would admit “speculative hearsay compiled without ascertainable scientific foundation.”  Of course you could subpoena the editors of Newsweek to explain all of this but, alas, they rarely come to court.

What really happens? Most judges this author has seen will admit the document over objection noting that the actual “value” of this as evidence is not easily ascertained.  I suspect they then lug the magazine back into chambers and scan it first to see whether their high school got in.  Then they will glance at the schools the litigants want to compare and spend a couple of minutes seeing what data there is that they can assess (e.g., grad rates and SAT scores).  Because, even they realize that Newsweek and other magazines of its ilk don’t really spend the other 51 weeks of the year studying America’s 18,000+ high schools. Americans love rankings of all stripes and a magazine’s job is to amuse its audience.

The other thing that happens in chambers after the dust of a school enrollment fight settles is lamentation. I suspect that what most judges would privately tell the litigants is that if they truly wanted a positive outcome, the best thing two parents could do would be to agree on a school placement and support the child together in that placement.  For most children a custody war is a diversion from life and education over which they have no control.  In many instances it is clear that No. 36 ranked Conestoga High School is a superior school to No. 168 Fox Chapel.  But outstanding kids from Fox Chapel go to Harvard too and in the vast majority of custody disputes, Harvard is not really on the horizon.  There are always special cases where a child has really unique gifts (not as much as their parents think) or special educational challenges where a special educational “fit” is called for.  But, most judges grade on the “curve.”  They are not trying to raise young venture capitalists or nuclear physicists.  They want children who will not commit crimes and pay taxes when they grow up.  Judges get to see plenty of adults who are very bright but never mastered the “no crimes” or “pay taxes” thresholds of adult life.  So often they are put off by parents who think that a child custody trial is a sound means of securing maximum educational achievement.  Parents are often disappointed to discover that “The judge doesn’t seem to care.”  Ironically, judges do care, but from their elevated view on the bench they often see quite clearly that moving a child from No. 284 Haverford High to No. 126 Kiski will not vastly improves the chances for post grad studies in math at Stanford.

The ratings wars will go on because we love quick answers to complex questions. And if you have a custody case where you want to enroll Eloise in No. 113 Upper St. Clair while the useless father wants to keep her at a school that doesn’t even have a ranking, be certain to get the August 11 edition of Newsweek and bring it to Court so the judge can see that you are a concerned parent.  But don’t bet the down payment on a house in western Pennsylvania on the belief that the magazine is your ticket to a new life in a new town.  It’s not how the cookie crumbles.

Having just finished one of these, I searched our database and noted that we had written very little about it.

In my case earlier this week, my adversary and I had been negotiating a child support order. After several rounds, we reached a mutually acceptable conclusion. When I wrote to confirm our “terms” I received a responsive email that the child’s father wanted to claim the child as a dependent on his federal income tax returns “every other year.”  My client would justly ask:  What does that concession mean and what is it worth?”

If you do your own income taxes at the federal level, you know that on page 1 of the return you are asked to name your “dependents” and on page 2 you can claim a deduction reducing your taxable income by $4,000 for every eligible dependent including yourself. So if Mr. and Mrs. Hubbard are living in the same shoe and they have two minor children, they can take a total of $16,000 in exemptions (i.e. deductions) from their income ($4,000 x 4).  But what happens when Father Hubbard splits to live with another storybook character?  Clearly, if the Hubbard’s continue to file joint returns, nothing much changes.  But Father Hubbard is now paying some deductible alimony to Mother and he needs to file separately in order to claim it.  And since he is paying child support as well why can’t he deduct at least one of the kids?

Well the Internal Revenue Service is on this and since 1984 they have taken the position that the deduction associated with a child goes to that parent who had primary physical custody.

The parties can agree to split the deductions (one parent takes each child) but absent an agreement, the deduction stays with the parent who has the kid most of the overnights, even though the non-custodial parent may be paying most or all of the freight. More recently as we have seen increases in shared physical (50/50) custody, the service has held that the deduction in that instance goes to the parent with the larger adjusted gross income.  See our blog on this 11/1/12.

As we have noted, the deduction can be traded and the IRS has a Form called No. 8332 that allows parents to do that. So what is the deduction worth?  $4,000 right?  Well, not so fast.

The real value of the deduction depends on your taxable income for single folks with taxable income under $10,000; the deduction is only worth 10% of the face amount or $400. But for a head of household with taxable income over $50,000 it is worth 25% or $1,000.  Get that taxable income up into the $200,000 range and the deduction accelerates to 33% or $1,320.  The value of the deduction tops out at 39.6% or $1,584 but your taxable income has to top $400,000 to get that amount.  Beware that as adjusted gross income (AGI) starts to exceed $150,000 the IRS begins to nibble away at the value of the exemption through a “phase out.”  For many high income taxpayers, there is effectively no personal exemption to deduct because of the phase out.

One other thing to know. Assigning the exemption to another does not affect a taxpayer’s right to be a head of household and to use those slightly lower tables in determining the actual tax due. But one thing is clear; while dependency exemptions do reduce your taxes, they do not do so dollar for dollar. An exemption is, at best worth the equivalent of $110 per month and, at worst worth about $35 monthly.

N.B. IRS Publication 504 is the best place for a layperson to consult on line.  Every one of the rules described above has a plethora of exceptions.

A Friendly Amendment To Our Blog On Dependency Exemptions:

I heard from one reader with a very apt point. As income rises, into levels above $150,000, the dependency exemption does phase out and there is a level where it disappears completely.  So I was incorrect to suggest that it has a minimal value.  It can be zero and you certainly don’t want to get into a fight over “nothing.”

An interesting and, yes, published relocation case was decided by the Superior Court on June 15. D.K.D. v. A.L.C. 2016 Pa. Super 123 involved custody of a child, age 8, who suffers from Pervasive Personality Disorder. The parents separated shortly after the birth of L.D.  They were not divorced until 2015.

L.D. showed signs of language and speech delays at 18 months and the formal diagnosis of an autism spectrum disorder was made at age 3. After separation the parents lived in close proximity to each other but father’s custody was limited to four hours during the week and alternate Saturdays for an additional three hours.  Whether rightly or not, mother appears to have insisted that visits be confined to her home because L.D. did not respond well to changes in location.

In February, 2014, father filed for larger blocks of custody and a holiday and vacation schedule. Mother responded with a request to relocate with L.D. to Florida where her mother resided. In March, 2015 with the trial of the conflicting claims concluded the relocation request was denied, the court noting that it saw the only change to be a possible improvement in mother’s life by living with her mother.  The Allegheny County court’s order also expanded father’s custody over time and instructed mother that L.D. could and should be taken from mother’s home during father’s visits.

The Order of March 23, 2015 prompted mother to file for reconsideration and special relief. One of the ostensible issues was the failure of the order to address custody for mother if she relocated to Florida without L.D.  Mother also sought a new order premised upon her securing a job in Florida with the US Dept. of Veterans Affairs.  Further upping the ante, mother expressed her intention to purchase a home in Florida for mother and L.D. to reside in.  The trial court took the bait, granting reconsideration and re-opening the record to take additional evidence in June, 2015.

The second hearing was the charm and an August 2015 order granted the relocation. This time the trial court found that not only would mother’s life be enhanced but L.D.’s as well.  The factors which previously weighed against relocation: stability for a child with learning/emotional problems, father’s inability to preserve a relationship following a 1,000 mile move and mother’s unjustified need to control father’s visits faded into the mists.  The remaining factors were adjudged neutral, which is to say favoring neither party.  Curiously, the trial court found that mother did a better job of providing for L.D.’s needs but also expressed confidence that father could step up to do more if mother would only permit that.  But the court found that, despite its prior findings, mother would probably be more cooperative if permitted to relocate away from father.

Father appealed and came out swinging with the canard that the trial court had resorted to the long reviled “tender years doctrine”, holding that young children belong with their mothers. The Superior Court axed that argument finding that the record showed no such prejudice.

But, the appellate court was troubled by the sudden shift in mother’s “circumstances” after losing the initial round of the case. Suddenly a $36-41,000 job appeared in Florida and equally suddenly maternal grandmother committed to acquire a $435,000 home for her daughter and L.D. to reside in.  From the opinion, these appear to be the only new facts underlying reconsideration.  Terming the new order of August 2015 a juridical volte face, the Superior Court found that the record did not support the new conclusions of life enhancement for the child.

In denying relocation during Trial 1, the Allegheny County court found that relocation would disrupt stability of school, neighborhood and friends for a child afflicted with a condition that made any adjustments extraordinarily difficult. The trial court also used mother’s professed willingness to leave the child with father in Pennsylvania if relocation were not granted as a tool to rule against father in Trial 2.  Thus, if mother moved and left the child behind, the child would inevitably have to move to father’s neighborhood and enroll in father’s school district.  Father’s offer to move into the child’s existing district if mother relocated without L.D., was not given any weight.  The trial court also found to have ignored the detriment of losing the existing health and behavioral supports in Pennsylvania that L.D. relied upon in addition to his parents.  In addition the Superior Court noted the inconsistency in finding that L.D. needed to preserve his relationship with his father in denying relocation during Trial 1 but finding that alternate weekend visits in Florida by father was an adequate substitute during Trial 2. In a telling observation, Superior Court Judge Bowes writes that aggregating blocks of visits around school breaks and summer is not a viable substitute for the regular twice weekly contact and alternate Saturday visits that L.D. had been accustomed to have with his father.

Mother’s conduct in relocating to Florida without L.D. while the litigation was still underway and sending L.D.’s grandmother back to Pennsylvania to assume primary custody also did not win her any favor. The appellate court saw this choice of not permitting father to have more time while mother was working at her new job in Florida as emblematic of mother’s insistence upon control.  Other inconsistencies also emerged.  Mother moved the Florida professing that she could find no work in Pennsylvania despite her law license.  She also professed that she could not afford to live in her current $290,000 home.  But with the help of her own mother she was able to secure a $435,000 home in Florida with only a $40,000 job and roughly $30,000 in support and alimony from father.  The Superior Court’s review of mother’s job search in the two years prior to her relocation revealed that it was almost exclusively in pursuit of employment in the Sunshine state.  The home acquired with grandmother’s support is two hours away from grandmother’s own home so that the wholesome image of a tri-generational family in one place proved to be illusory.

Finding that mother’s actions “expose her insincerity” the Superior Court reversed the order granting relocation and directed the trial court to hold a hearing to determine how L.D. could be transitioned to live with his father. If mother abandons Florida to resume residence in Pennsylvania the panel suggested she file a petition to modify the now “corrected” custody order.

This case is disturbing in many aspects. Experienced practitioners are used to seeing parents play that “You want more time, I’ll move away” card.  It would appear that even after a year to prepare a relocation case Trial 1 was an abysmal failure for mother; with little evidence of any real benefit to relocation.  But having burned both time and money failing with Trial 1, mother was instantly permitted to “double down” and change the entire theory of her case with new facts.  Reconsideration of a court ruling is supposed to be limited to correcting the evidence or understandings that were of record.  It should never be an invitation to “re-try” a different case employing different facts or theories.  In a world where custody cases are always fluid with ever changing facts, courts need to insist that absent truly compelling circumstances, litigants get one trial at a time.  A child who, by all accounts, fears change and needs stability has endured 2 years of litigation and will now experience two relocations and a change of primary custody because mother decided not to line up a credible case until after she had lost the first trial.  Both the bench and the bar need to realize that the quest for complete records and best interests can often produce enormous backlogs, huge legal bills and instability for the very children we are all tasked to protect.  The Superior Court appears to have done the right thing in reversing this chain of errors.