Archives: child

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.”

Periodically I am asked questions about name changes for children or whether a mother is obligated to use the biological father’s last name for the child (answer: she’s not). A child’s last name is obviously an important and complicated issue that relates to the child’s identity and understanding of their history and parents. Mishandling a child’s last name can have emotional and legal repercussions for the child later in life.

A recent case out of Lawrence County in Pennsylvania highlights the standards used to consider whether changing a child’s name is in their best interests. The case In Re: Jessica Benegasi Foore involved a petition by the mother to remove the last name of the child’s biological father (“Foore”). The Court agreed on the basis that the child did not have a relationship with her father, thus there was no risk of alienation or interference with that relationship, but also because the name change would mirror that of her mother and half-sibling. The court considered that sharing the same name as the other members of her family would make the transition into school easier and provide her with better emotional security. The court also recognized that the father’s name carried with a negative connotation and poor reputation.

The considerations made the court in this case are not exhaustive, but provide a good insight into what facts make for successful name change petitions.

In Re: Jessica Benegasi Foore, C.P. Lawrence County, No. 70097 of 2011, M.D. (C.C.P. July 17, 2013).

 

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That divorce has a major impact on the lives of children is axiomatic; it is rare that a child is better served by their parents divorcing than if they stayed together (though exceptions exist where a child’s home life with two warring parents is far worse than a peaceful single-parent household).  Even if a divorce results in a better home life for a child, there is a psychological impact on a child and how they view and approach personal relationships as they get older.

In a recent article on www.sciencedaily.com, two studies are reported on which examined the impact of divorce when it occurs early in a child’s life.  In one study, 7,735 people were surveyed about their personality and close relationships.  More than one-third of the participants experienced their parents’ divorce at an average age of 9 years old.  These individuals were “less likely to view their current relationships with their parents as secure. And people who experienced parental divorce between birth and 3 to 5 years of age were more insecure in their current relationships with their parents compared to those whose parents divorced later in childhood.”

One of the doctors conducting the study, R. Chris Fraley of the University of Illinois at Urbana-Champaign, is quoted as saying, “[a] person who has a secure relationship with a parent is more likely than someone who is insecure to feel that they can trust the parent… [such] a person is more comfortable depending on the parent and is confident that the parent will be psychologically available when needed.”  The study also found that parental relationships with fathers are more affected by divorce than with mothers and that there is greater insecurity with paternal relationships than maternal.

These studies will undoubtedly inform and influence the counseling of children (and adults) affected by divorce.  Though divorces will occur, a greater understanding and emphasis as to how divorces affect people will hopefully result in children of divorce having better relationships with their parents post-divorce, but also have secure, solid relationships when they are adults.

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

(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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(Photo by Indi Samarajiva)

 

The Pennsylvania Support Rules were recently amended on December 30, 2012.  Rule 1910.29, formalizes the presentation of support evidence for Family Law Cases.  Anecdotally, the Rules of Evidence may not always be strictly adhered to in family law cases due to probative value of some forms of evidence weighed against the cost and difficulty of verifying it or authenticating it at trial. 

 

Rule 1910.29 attempts to eliminate some of ambiguity about the admissibility of some forms of evidence by providing counsel the opportunity to offer the other side copies of those documents they will be offering into evidence twenty (20) days prior to the hearing.  In doing so, provided the other party does not object to the admission of those documents into evidence, they will be accepted as authentic and admitted into the record.  If an objection is made to the records, then the Pennsylvania Rules of Evidence will apply as to the admissibility of those documents into evidence.

 

This rule also standardizes the admission of medical evidence in both record and non-record proceedings, (i.e. proceedings which are not recorded by a court reporter).  Whenever a party raises a medical issue as preventing them from earning income, that party will need to obtain a Physician Verification Form and have their physician fill it out and verify its contents as accurate.  This Physician Verification Form will hopefully eliminate some of the ambiguity for those parties who claim a disability, but conveniently have failed to file for Social Security Disability or worker’s compensation benefits. 

 

If the party who has introduced the Physician Verification Form at the non-record hearing would like to have it entered into the record at the record hearing, then the above rules will apply with giving the other party twenty (20) days notice prior to the hearing and allow the other side the opportunity to file and serve an objection within ten (10) of being served with the document. 

 

By filing an objection, it is likely that the physician will need to testify since there will not be any medical evidence available for the record and if the court deems that the objection to the entry of the Physician Verification Form was frivolous or unnecessary then it is within the court’s discretion under this rule to allocate the costs of the physician’s testimony between the parties.  This portion of the rule is a not-so-subtle suggestion to attorneys to keep their objections substantive and not use objections as means of delay or obstructing the other side’s case.

 

This rule update is a significant change in how evidence is admitted in support actions.  This should help streamline litigants’ ability to offer complicated financial evidence and have objections and questions addressed in advance of the trial, rather than bogging down or delaying the substantive hearing by what amounts to a discovery dispute. 

 

This rule can also have the positive effect of keeping some litigation costs down by allowing a party to produce a non-expert summary and have it pre-approved for admission into evidence, thereby alleviating the need to bring an accountant or other financial expert to court in order to testify as to the information. 

 

Finally, Pennsylvania Family Law procedure varies from county to county and is reliant upon local practice when dealing with a variety of different issues.  This rule update gives some state-wide uniformity to this form of evidence.

 

Darcy Williams of our Chester County office recently provided an entry to our firm’s Berks County legal blog by discussing how the Court of Common Pleas dealt with a support modification which was filed less than twenty days after an agreed order went into effect.  Citing the Pennsylvania Support Code with respect to filing modifications based on changes in circumstance, the Court dismissed the petitioning mother’s claim that a mutual mistake occurred when the parties reached an agreement on the amount of support to be paid in this case.  The Court noted that the Mother’s remedy was to file an appeal within twenty-days of the Order, not file to modify since no change in circumstance had occurred.

It is an interesting example of procedural nuance and code interpretation and offered in its entirety below:

 

On December 11, 2012, the Honorable Peter W. Schmehl of the Berks County Court of Common Pleas, Domestic Relations Section, explained what factual and legal requirements must be met for a petition for modification of a support order in Miller v. Miller, No. 12-15465 (Pa. Ct. Com. Pl. Berks Co., Dec. 11, 2012).  In this case, Ms. Miller filed a Complaint for Support against her ex-husband, Mr. Miller, for both her and her child.  After a domestic relations conference before a Domestic Relations Conference Officer, the parties consented to a Support Order allocating approximately $1,900 per month to Ms. Miller and her child.

On August 31, 2012, a mere eighteen days after consenting to the Support Order, Ms. Miller filed a Petition for Modification of a Support Order (the “Petition”). In the Petition, Ms. Miller claimed that “Since the entry of the Order, the circumstances have changed substantially as follows:  Expense of $3,800 per month was improperly deducted from Mr. Miller’s net income.” On September 13, 2012, Mr. Miller filed Preliminary Objections to the Petition claiming that Ms. Miller failed to comply with Pa. R.C.P. 1910.19(a), which requires that the Petition aver a material and substantial change in circumstances in the two weeks since the Support Order was entered.  Basically, Ms. Miller did not allege any financial changes over the eighteen-day period, but instead, Ms. Miller simply believed that there was a calculation error in the Support Order.  On September 20, 2012, the Court sustained Mr. Miller’s Preliminary Objections and dismissed the Petition.

On October 1, 2012, with the assistance of her new counsel, Ms. Miller filed a Petition for Reconsideration and an Answer to the Preliminary Objections.  Ms. Miller argued that Judge Schmehl should reconsider because she was not given the requisite twenty (20) days to either Answer Mr. Miller’s Preliminary Objections or to file an amended Petition.  In her Answer to the Preliminary Objections, Ms. Miller also argued that the agreed upon Support Order was based on a mutual mistake of the parties, and that the biweekly expense of $1,900 was improperly deducted from Mr. Miller’s support calculations. 

Judge Schmehl found that, although the decision granting the Preliminary Objections cut short Ms. Miller’s twenty-day period to answer or amend the Petition, any Answer or amendment would be futile given these particular Preliminary Objections and Ms. Miller’s underlying Petition.  Ms. Miller could not possibly answer the Preliminary Objections such that the Court would overrule the Preliminary Objections. 

In affirming the prior Order sustaining the Preliminary Objections, Judge Schmehl first noted that 23 Pa. C.S.A.§ 4352(a) provides that a petition to modify a support order may be filed at any time if the requesting party demonstrates a substantial change in circumstances.  Further, Pa. R.C.P. 1910.19(a) requires that a petition to modify a support order shall specifically aver the material and substantial change(s) in circumstances upon which the petition is based. 

Judge Schmehl found that Ms. Miller did not aver any changes in circumstance in her Petition, let alone a material or substantial changes.  Judge Schmehl noted that Ms. Miller did not allege such valid changes in circumstances such as loss of employment or receipt of a promotion in the Petition.  Clearly, a mere allegation that a support calculation is “improper” is insufficient to support a finding that circumstances had materially changed. 

Relying on Florian v. Florian, 689 A.2d 968, 971-72 (Pa. Super. Ct. 1997), Judge Schmehl held that had Ms. Miller wished to challenge the calculation set forth in the Support Order, she should have filed an appeal, not the Petition. 

Judge Schmehl held that the Support Order was not only an arrangement between the parties, but was also the result of the determination of an officer of the Court – the Domestic Relations Conference Officer – acting as a trier of fact.  The Conference Officer’s finding was consented to by both parents and no appeal followed.  Judge Schmehl found, therefore, that the Support Order is now the law of the case, and would be subject to change only upon some material and substantial change in circumstances. 

First, Judge Schmehl’s order affirms that a support litigant must follow the proper procedures for challenging an incorrect calculation by filing an appeal.  Second, Judge Schmehl cut short a potentially futile, costly and time-consuming battle involving the Petition when it was clear that Ms. Miller’s arguments were without merit from the outset. 

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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

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http://www.mcapkids.org/.

 

 

The allocation of child tax dependency exemptions is a topic of discussion among our clients on a frequent basis. While the guidelines issued by the I.R.S. dictate who is eligible to claim the children, in Pennsylvania the issue may be raised in the context of child support under Pennsylvania Rule of Civil Procedure 1910.16-2(f). The stated purpose of this rule is to "maximize the total income available to the parties and children" and, therefore, the Court has the authority to award the exemption to either party and, when awarding it to the non-custodial parent (i.e. the party who may not be eligible to claim the exemption under the I.R.S. guidelines), order the custodial party to execute the I.R.S. waiver allowing the other parent to claim the exemption.

Leslie Spoltore, a partner in our Wilmington, Delaware office, recently wrote about a Delaware Family Court case which deals with the allocation of the exemption and articulates a much more specific set of criteria for deciding which party should be awarded the exemptions. It is a worthwhile read and gives some insight into a different way to deal with this issue in a family law case.

 

 

 

Along with the recent revision to the standing provision of Rule 1910.3, the Pennsylvania legislation also made revisions to Rule 1910.19, which addresses the relatively rare, but frustrating issue of support overpayments.

Addressing overpayments related to child or spousal support can be frustrating for the party paying support (the “payor” or “obligor”) because of the disparity in attitude toward overpayments compared to people who do not pay their support on time or at all. For instance, if they were to owe support (be in “arrears”), their tax return would get intercepted, they couldn’t buy or sell a house without satisfying the debt, or they may have other enforcement remedies taken against them.

 

The policy of the Domestic Relations Office (“DRO”) for overpayments, however, is that it is preferable to carry an overpayment until the support obligation ends. This is policy is reasonable and logical, but it does raise two questions for the payor:

 

1)         How do I stop the order from charging; and

2)         How do I get the overpayment returned.

 

The first question received some minor tweaking to Rule 1910.19 which went into effect October 31, 2011. DRO will make an emancipation inquiry within 6 months of the date the child is to turn 18 years of age. If the notice is not returned to DRO within a six (6) month time frame and there is overpayment on the books then DRO shall administratively terminate the child support order on the perspective date of emancipation (18 years of age and graduated from High School).

 

Now that the Order has been stopped, the next question is to figure out to have the overpayment returned to the payor. Rule 1910(g)(1) and (g)(2) now allow a procedure to accomplish just that:

Section (g)(1) allows that when a charging order is in effect, DRO will reduce the Order by 20% until the overpayment is discharged. The payee can contest this reduction and request a hearing;

Section (g)(2) provides that if there is no charging order in effect (for example, it has been terminated due to emancipation), the payor may petition DRO to recover the overpayment. DRO has, within their discretion, the authority to enter an Order against the payee to pay the overpayment on a monthly payment schedule – basically, a support order in reverse.

 

Overall, this is a step in the right direction for correcting a procedural conundrum for DRO. While the number of people who will utilize these rules may pale in comparison to those payors who fail to satisfy their support obligations, both payors and payees are entitled to equal opportunity in  addressing their claims.