Archives: Custody

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.

My colleague Aaron Weems reported this case on April 12. In the spirit of our U.S. Supreme Court, I offer the following concurrence with his blog but spirited dissent from what the Superior Court ruled.

In this published decision, a panel led by former President Judge Bender decides that so long as a reference is made in the pleading to custody modification it does not matter how the pleading is captioned. The problems presented by such precedent are worth some examination.

Contempt in custody is a statutory creature. 23 Pa.C.S. 5323(g). It offers five very specific remedies, none of which involve modification, In many Pennsylvania counties, the procedure for contempt is entirely different than that for custody modification. Scheduling is also handled in a very different way because the issues are typically quite limited.  The Court personnel who schedule these matters do not customarily read beyond the caption of the petition to gather what the petitioner really wants.  So it would be fairly common for a court administrator to direct a contempt petition to a hearing list where several matters are scheduled for disposition in a single day.  A custody modification requires a pretrial statement under Rule 1910.4-3.  Request modification under the contempt rules and you can skip that step.

The next question involves what goes on in the Courtroom. Most judges are going to look at a petition such as the one in this case and tell the petitioner that he or she will hear the contempt but not the modification. But pity the poor litigant who finds himself defending a contempt with a request for modification in a setting where the judge has the time to hear a custody case.  That litigant better walk into contempt court ready to try a modification and to cover the sixteen factors that must be evaluated under 23 Pa C.S. 5328. See S.W.D. v. S.A.R. 2014 Pa. Super. 146 (2014). In the case decided here, the case was remanded because the contempt court failed to cover all of the enumerated factors.

So what have we accomplished? A party can effectively sandbag the opponent if the trial judge permits it.  Both bench and bar face the prospect of stepping into court not knowing what issues will be tried on the date that a “contempt” hearing is scheduled.  Obviously a judge can stop this but it seems clear, that is not required.

The opinion correctly observes that the right to due process was not wholly violated. As the opinion notes, the request for a change in custody was written into the petition filed by the Father. But both the legislature and the judiciary have made it very clear that child custody matters require a full exposition of the facts before any modification is made.  The idea that modification can be “bootstrapped” into a petition premised upon violation of an existing order works against the very principles both the laws and the rules espouse to promote.  And the defense that contempt can be a springboard for a wholesale modification of custody because it is in the “best interests of the child” to do so, is not a strong one.  The opinion goes to some length to describe “signals” that the trial was going to be addressing modification and not merely a contempt petition. The difficulties presented, especially to pro se litigants by reliance on signals rather than the plain caption of the pleadings presents its own problems.  We have published volumes of statutes and rules intended to make clear what judicial avenue a court is taking.  We reported a decision in November, 2012 where a panel of the Superior Court affirmed the concept that modification was a distinct proceeding from contempt.  See P.H.D. v. R.H.D. The idea that a parent suffered a significant change in custody of a child where there are clearly marked legal procedures which distinguish contempt from modification and where there was a “right” way to go about it which was not heeded, creates a disturbing trend.  Moreover, it opens the door to more appeals where the Superior Court will be asked whether the notice of intention to change custody pursuant to contempt powers is “enough”.  This will be fertile ground for appeal but not productive ground. Ironically, from the opinion it appears that the contempt that had been filed was never disposed of, which begs the question of whether this case was appealable in the first instance.

In sum, we have an opinion where substance triumphed over procedure, leaving procedure badly mauled and wondering “What next?”

2016 Pa. Super. 40 (2/18/2016)

 

 

There was a time not so long ago when clients would unload their domestic troubles on lawyers like a cord of rotted wood. They might take care in shopping for the right fit in terms of who would represent them. But once the selection was made, the answer was “Let the lawyer do it.” That’s what they get paid for, right?

True enough, but as the quantity and quality of on line resources have proliferated, legal advice has started to be viewed as an indulgence. Anyone can tell you it’s expensive, and it is. And, there is a huge array of free information on the internet (like this blog) calibrated to be useful.

Millennials, in particular, like to do it themselves. In domestic affairs, they see this as their relationship and they should be able to regulate how it ends. They may grudgingly tolerate advice from others but they see that as a plot to abridge their right and their power to manage their own affairs. Their parents tend to be more practical at least in their own view. “For what I pay a lawyer, I could go to Disney, replace a car or some other entirely useful thing.” All true. Until it bites you in the backside.

In the past couple of weeks here are some of the internet myths we have had to detonate for true believers in the power of the web. Divorces are granted automatically in Pennsylvania after two years. Custody courts automatically impose shared physical (50/50) custody arrangements. The person paying the child support always gets to deduct the children. There is no alimony in Pennsylvania. Every child over 10 gets to decide where he will reside. Courts can’t divide pensions because they belong only to the employed spouses who earned them. All of these myths contain a kernel of truth but are more wrong than right. Not any of the websites we have seen actually misrepresent the law. But none of us relies exclusively on the net for information. We dose it with the information we get from the yoga instructor, the bartender at the favorite restaurant or the well- meaning advice of great uncle Ellwood who left his horrible first wife in 1978 to marry your not so great aunt.

So, does this mean forego Disney, the new car, or the 72” flat screen? Perhaps yes. But if you are doing a divorce where money matters or it is going to affect whether your kid spends two non-consecutive weeks or half the summer with his dope smoking mother, some legal counsel may be in order. There are times when we actually do advise clients that the battle is not worth the personal or economic price. But we had people come to us with agreements they have signed or court orders they never appealed that promise them a lifetime of pain. Like the spouse who assumed that lifetime alimony meant “until he retired”. Or the parent who thought that if she just let father relocate to San Diego with the child, she could always go back to her local court to undo it later. This has become more true over time. We now commonly see executives who once could easily afford the college commitment they signed up for in 2005. Ten years later, their child has been admitted to a college with tuition that consumed more than half of their downsized net income.

Lawyers are not retailers devoted to crafting a “happy” shopping experience. Like physicians we sometimes have to report unhappy results. But the results you get will be directed toward your assets, your children, your experience and not some well-crafted avatar which might seem to be similar to your life experience, but really does not.  Your domestic affairs are about your skin and, like it or not your skin is a custom made suit, not something you found on line or at Kohl’s or Boscov. If you must do it yourself, at least find out whether  it needs to be done, and how best to do it.

 

Tools of the TradeSince the child custody statute was updated in 2010, a considerable about of time and effort on the part of the Superior Court has been spent clarifying various aspects of the law. Among the more pertinent issues related to how the statute was to function is the trial court’s obligation to consider and opine on all of the custody factors. Previous appellate cases have shaped this requirement (or, conversely, the absence of the requirement) where “discrete” issues of custody are being considered or where a substantive change to the custody schedule is occurring.

It is the latter where the Superior Court has recently remanded a case back to the Trial Court with an order for it to fully explore and articulate how they have addressed the custody factors in a given case. In that case, C.A.J. v. D.S.M., 2016 WL 685169, Father filed a contempt petition on the parties 2013 agreed custody order. Within that petition, he sought a significant modification of the custody schedule to award him primary custody.

Their original 2013 agreement provided that Mother had primary physical custody during the school year, and the parties had 50/50 custody from May until September on a week on/week off basis.  Eventually issues arose and Mother relocated without judicial or Father’s approval as required by the Custody statute.  Father filed for contempt of the 2013 custody order and sought to modify custody to have primary physical custody. He did not file a separate modification petition. A 2015 Order was entered by the trial court after a hearing whereby the parties were to share physical custody on a two week on/two week off schedule.

Mother appealed on the basis that the trial court did not consider all of the custody factors, nor did she have notice sufficient to satisfy the due process clause of the Constitution. Her theory was essentially that whether or not the Trial Court can modify a custody order during a contempt hearing rests on the responding party having sufficient notice of a request for modification.  When modifying custody, due process rights attach to the responsive party.  Without sufficient notice, modification cannot occur.  In this case, Father’s contempt petition included a request to modify physical custody of the child.  The Court directed the parties to custody conciliation which both parties participated in and which, by extension, demonstrated mother’s constructive knowledge that the custody order was at issue. Essentially, mother knew that within the contempt the underlying custody order was in contest and potentially subject to change. Accordingly, the Superior Court upheld the Trial Court’s ability to modify the custody order within the contempt action. The Superior Court also relied on case law and Rule 1915.15 which allows for modification of custody/visitation Orders where it is in the best interests of the child.

So while the Superior Court would not disturb the Trial Court’s ability to modify the order, it did take exception with how it addressed the custody factors. The Superior Court found that the Trial Court’s truncated list of custody factors identified in its opinion was insufficient, citing Pennsylvania case law for the requirement that all custody factors be considered.  On that basis, the Superior Court remanded the case back to the trial court for the limited purpose of issuing an opinion addressing all custody factors.

This case does establish that a contempt action with sufficiently pled averments for a modification of custody will be sufficient to establish notice for due process purposes and avoid having to file two petitions or pursue custody and modification on two separate procedural tracts.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

 

We live in interesting times. We have recently reported on significant cases discussing who has legal standing to seek custody of a child and whether that “standing” comes with a child support obligation.  But one bedrock that has been around for a while is what is called the presumption that a husband is father unless someone proves he had no access or was incapable of procreation.

It has been a presumption which today stands despite the fact that science now allows us to show otherwise. Genetic testing has been around for about 20 years and today it is considered the standard.  But the presumption of paternity is an interesting one. “A” may sleep with “B’s” wife but if wife becomes pregnant and B decides that he wants to play dad, the fact that “A” can prove that he is the real father is of no consequence.  That’s the law of Pennsylvania although this author believes it has some constitutional weaknesses.

In M.L. v. J.G.M, a case decided on January 4, 2016, the two parties were married in 2001.  They separated in late 2011 and divorced in September 2014, they had one child together who is today 10 years old.

As is happening with some frequency, the once separated Father started to have some thoughts about whether his child was, in fact, his child. Today, paternity tests are freely available so he administered one on the child (typically it involves an oral swab) and the test came back excluding him as the father.  Almost two years after separation he filed a petition in Berks County to terminate support.  He also sought blood testing within the court system to confirm that his drugstore test was accurate.  Mother filed to prevent the test.  The Berks County Court ordered the blood test because the marriage was no longer intact and the parties having been divorced several months before the motion was heard.

But the battle did not end there. The Superior Court had to wrestle with the Supreme Court’s ruling in K.E.M. v. P.C.S., 38 A.3d 798 (2012).  There the court held that paternity by estoppel will apply only where the doctrine promotes the best interests of the child.  In that case the father continued to promote his role as father even after learning from a biological viewpoint that the facts were not with him.  The Supreme Court ruling contained an eloquent reflection on how the passage of time leaves the child with no hope of finding the actual parent and the clear harm of losing the only father the child had known.  The language is moving but, unfortunately, science “moved” faster.

In current case as well as an earlier Superior Court case decided in 2011 (R.J.K. v. S.P.K., 32 A.2d 3d 841), the matter was remanded to develop a full record including psychological testimony related to the bond between the child and the presumed father.  The opinion of Judge Lazarus does a thorough job of analyzing what courts are to look to when building that record. But, build it as you may, when the dust settles there are going to be some angry adults and a bewildered child.  Typically we assume that these children are accidents or the product of loose morals on the part of both biological parents.  But not every man who sleeps with a woman gets an honest answer about her marital status or her views on birth control even if he does inquire.

And the forgiving husband who adopts the child of the casual relationship despite the infidelity may not always remain so honorable or caring. The difficulty we face today is that anyone can buy and employ a genetic testing service.  So while a Court may rule that “B” is officially Father in the Courtroom and the schoolhouse, it can’t, in practical terms try to prevent “A” from reaching out to his child or compel “B” to maintain a physical or emotional relationship.  In this case, it appears that damage has been done as J.G.M. terminated contact with the child just after her eighth birthday.  We can label him “dad” and we can compel him to pay support for her. But we can’t make him love her or “fix up” a family for this innocent child.

Almost twenty years ago, I was appointed to a committee of the state bar association to address this presumption issue. I was and, remain in a decided minority when I suggested that there be mandatory paternity testing at the hospital before a child is released.  If that had been done in this case the cards would have been on the table.  And knowing that the testing would be required, many couples would be forced to be more honest early on.  The trouble is that far too often, a secret is kept and the longer it is kept, the more damaging it becomes to the child involved.

Welcome Gift for Coming to PA and Violating a Restraining Order
(Photo Credit: www.wisegeek.com)

 

Back in December an interesting news report appeared out of Arkansas involving two Pennsylvania brothers who robbed a bank in Arkansas while their companion waited in the getaway car with her two children.

What happened next was an excellent example of how the Uniform Child Custody Jurisdiction and Enforcement Act can operate to expeditiously reach the right outcome for an interstate custody issue.

The children’s father in Pennsylvania, who had been in a three year legal battle with the children’s mother, immediately traveled to Arkansas after learning of the incident. A few weeks earlier, Mother had left Pennsylvania with the children with the children and two men intending to go to Arizona.  When he arrived in Arkansas, the children were in the custody of the local Department of Human Services and could not be released to him. Presumably due to the circumstances, they were in the initial stages of Arkansas dependency process to determine whether they should be placed in foster care until a determination as to what their long-term placement would be.

Fortunately, it would appear that the UCCJEA operated as intended and the judges presiding over the custody case in Pennsylvania and the dependency judge in Arkansas, respectively, spoke and determined that Pennsylvania had jurisdiction over the children and the right to determine who may take custody of the children. Fortunately, having already arrived in Arkansas, their father was there to take custody and return to Pennsylvania.

No other reports have surfaced as to what happened to the mother. She was in the vehicle, so it is unclear whether she is being charged as an accomplice to the robbery. What is clear, however, is that after having absconded with the children and placed them in imminent danger, even if she is released and returns to Pennsylvania she has severely jeopardized her custodial rights.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

On September 28, 2014 Aaron Weems posted a blog in which he reported on a panel Decision of the Superior Court holding that a Father’s contractual undertaking to pay $10,000 to a Mother each time he sought to modify an agreed custody arrangement was enforceable. When the Mother sued to enforce the contract term and the Father filed objections stating that the contract was in derogation of public policy.  The Trial Court sustained his objections and Mother appealed.  The three judge panel decision reversed the trial court but the ruling was later withdrawn so that it could be considered by a full bench; nine of the fifteen commissioned judges.  The matter was argued in the Fall, 2015 and a new decision was issued on February 5.

The crux of the issue remains the same. The parties indeed made a contract containing this $10,000 modification “honorarium.”  When Mother sought to enforce Father (a lawyer) claimed that while he did sign the contract, the provision could not be enforced.  The law of contracts has long held that some provisions are against public policy and that those are unenforceable.  The typical examples are contracts involving illegal activities.  But Pennsylvania also has a long history of cases holding that agreements that limit child support are subject to being set aside where the Court determines that the arrangement does not promote the best interests of the child.  The Granddaddy of these cases is one where a Mother agreed to $5 a month in child support because she felt confident that helping the Father afford medical school would ultimately benefit their child.

The defendant in Huss v. Weaver 2016 Pa. Super. 24 tried to argue his way into the tent affording protection from his own agreement on the basis that paying the $10,000 charge was in some way bargaining the rights of the subject child.  The Superior Court was not buying that; noting that this was not money coming from support or a fund for the child, but Husband’s own resources.  The Court also found that the agreement in controversy contained a statement that Father was an attorney capable of earning “a large salary.”  It also distinguished a case where the Court voided an agreement that provided for one parent to pay the other parent’s legal fees if she later sought to modify the support agreement formed by the parties. Kraisinger v. Kraisinger 928, A.2d 333, 345 (Pa. Super, 2007).

There is language in this opinion which suggests that at hearing on this claim, the Defendant may be able to assert that he should be absolved of his contractual undertaking if he could show that the $10,000 payment was an impediment to his seeking modification of custody. See Slip opinion at p. 12. That, however, is not a basis to hold the agreement as violating public policy on the basis of the pleadings.  The case was remanded for hearing.

Four of the judges joined in a concurring opinion that cautioned the trial court that if the Defendant develops the right record, he might win. Penalty provisions that do not relate to actual damages are not favored in law.  The concurring opinion also notes that if facts were established that the $10,000 payment was impeding a bona fide action to protect the interests of the child, the court might come out with a different result.  So in the end, all we really know is that this kind of payment clause is not per se a violation of public policy but that its invocation will be viewed with suspicion even when agreed.

My partner in Philadelphia, Julia Swain, recently published an article in the Philadelphia Bar Association Reporter (Page 15) addressing the case of television personality Sherri Shepherd and her attempts to invalidate a surrogacy contract between her, her husband, and their gestational carrier.

This was a case of first impression for Pennsylvania courts, pitting Shepherd’s estranged husband, Lamar Sally, and their gestational carrier against her to force acceptance of parentage of this baby. After Shepherd refused  to execute the documents to establish parentage upon the child’s birth, the gestational carrier initiated a suit to disclaim parentage in the Montgomery County Orphan’s Court – after all, the carrier executed surrogacy contracts which explicitly disclaimed any parental rights she might arguably have as the “birth parent” of the child; she was not signing up to raise the child or establish standing for custody or support.

Shepherd’s attempt to invalidate the surrogacy contract and avoid being the legal parent of the child included arguments at trial that parentage had to be established by biology or adoption and, having neither, was not the child’s parent. She also argued that surrogacy contracts are against Pennsylvania public policy (they are not); and that she signed the contracts under duress (a claim which was withdrawn after public statements of her excitement over being a parent were introduced into evidence).

The Superior Court rendered their decision in November 2015 upholding the trial court’s decision with President Judge Susan Peikes Gantman writing the opinion on behalf of the the three-judge panel. As an aside, Shepherd did not have the luck of the draw on her Superior Court panel: before going to the Bench, Judge Gantman was a well established and well-respected family law attorney. If there was any jurist qualified to consider this appeal and write its opinion, it was Judge Gantman.

Shepherd has since appealed the Superior Court’s decision to the Pennsylvania Supreme Court.

The Shepherd case is important for a variety of reasons: it helps update Pennsylvania’s case law as it applies to surrogacy and alternative forms of family planning; it also helps solidify the validity of contracts in this area to ensure that parties’ cannot easily renege on obligations or use the the threat of invalidation or abandonment of contractual obligations to leverage concessions from the other parent, and; that these contracts are not to be lightly entered into.

Ms. Shepherd committed to bringing a life into the world and should be held responsible for that commitment even if it proves incongruous with her life. Not to be overlooked, as well, is Mr. Sally’s pursuit of child support in their home state of California.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.