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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A British think-tank recently published a study on excessive alcohol consumption which found a correlation between the children of divorce and what they defined as “problematic drinking behaviors.”  As reported by James Hall, the Consumer Affairs Editor of The Telegraph, the group, Demos, found that sixteen year olds who had “disengaged parents” and were subjected to the instability and stress of divorce and/or separation were eight times more likely to drink excessively compared to those kids whose parents were engaged in their lives. The results could help shape the alcohol policy of United Kingdom’s Department of Health.

Demos further found that parents who put strict parameters on their children’s lives (“tough love”) made a major difference in a variety of outcomes for the children, including how they handled and addressed their consumption of alcohol as teens.

Not surprisingly, but worth reinforcing, was the conclusion that strong support networks (or the absence thereof) had a major impact on how children recovered and prospered after a divorce.  The connection between an individual’s relationship towards alcohol and their home life not surprising and the outcome of the Demos study demonstrates how important it is for parents to set aside their personal problems related to a divorce and create a stable environment for their children.

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Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

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Not surprisingly, the two year rule has been coming under fire in Congress with the introduction of legislation by presidential candidate and Minnesota Representative Michele Bachmann, as well as a demand by Senate Finance Committee Chairman Max Baucus that the IRS review the two year deadline.

With respect to divorce, particularly in Pennsylvania where two years of separation is not an uncommon occurrence, people could easily sign a joint tax return as a routine action, without taking the time to carefully review the contents of the filing. Factor in abuse, fear, and intimidation and it is not a surprise that truly "innocent spouses" are being denied the right to raise that defense due to the two year limitation.

For most families, filing joint taxes is a routine affair – seldom is the time when filing under a different designation other than "married filing jointly" place a family in the most advantageous tax position. For couples who are separated, continuing to file jointly may continue to make the most sense.

There are times, however, when one spouse has no knowledge of the family’s financial affairs. If the situation warrants it, that spouse could claim relief from the IRS under the "innocent spouse" rule. This rule is designed to protect taxpayers who should not be responsible for the tax liability incurred by the culpable spouse, even in situation where a joint return was signed by the "innocent spouse."

A recent article, however, highlighted how the IRS has persistently struck down appeals by "innocent spouses" due to their failure to seek relief within two years of their receipt of an IRS tax collection notice. What makes these decisions particularly difficult to accept is that they are being made against battered spouses or other parties who were not in a position to know about the tax liability due to abuse or estrangement from the other spouse.  Consequently, they often do not even know there is a problem before the two year limit lapses.

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Though this blog typically addresses current issues in Pennsylvania family law, I thought it was worth noting the passing of a long standing member of the Pennsylvania Senate, Senator Michael A. O’Pake.

Among his many accomplishments and legislative efforts, he authored or helped spear-head many laws pertaining to family law, including the adoption of no-fault divorces, the passage of the Children’s Protective Services law and Protection from Abuse Act, and Children’s Health Insurance Program (CHIP), which we discussed in a previous entry.

Senator O’Pake has had a lasting impact on the lives of Pennsylvanians and legal community.

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