The leading case from last year in family law was the Supreme Court’s decision in D.P. v. G.J.P. 146 A.3d 204, holding that Pennsylvania’s grandparent custody statute offended principles of privacy and was partially if not wholly unconstitutional.

This was an odd turn, in an age when it seemed as if more and more people were eligible to claim custodial time or rights related to children. But the decision earlier this month from the Superior Court in K.W. v. S.L. & M.L. v. G.G. indicates that the matter of who has standing to assert custody rights is being further limited.

K.W. and G.G. had a child out of wedlock in August, 2015. Their relationship had ended long before and it appears that K.W. was not informed of his status as a parent to be. Rather Mother contacted Bethany Christian Services in March, 2015 regarding placing the child for adoption.

When the child was born in August, G.G. relinquished the child to Bethany who placed the child with M.L. and S.L. Knowing that it would need Father’s consent for an adoption to be consummated quickly, the agency, with Mother’s cooperation attempted to contact Father. After a couple of months of reaching out to the Father through social media, Father responded in mid-September to attend a meeting. A month later, he stated clearly that he would oppose adoption.

Father’s next step was to file a custody complaint on October 30, 2015 in Centre County naming Mother alone as defendant. He also filed a demand that Bethany indicate where his child was and that produced a temporary order from Centre County giving the adoptive parents primary custody and partial to Father. Legal custody was joint. Centre County also transferred the case to Father’s home county, Lycoming, for further proceedings.

A month later the adoptive parents, S.L. & M.L. filed a custody case in their home county, York, where the child had been present since two days after birth. At the same time they filed an appeal to the Order from Centre County transferring venue to Lycoming County. This prompted Centre County to revoke its order of transfer and move the case from Lycoming to York County.

Father filed preliminary objections to the York County case asserting that the adoptive parents lacked standing. The adoptive parents asserted that they stood in loco parentis. At roughly the same time Father filed his own case in York County. The Court entered a temporary order maintaining the status quo of the Centre County order. Meanwhile Father asked for argument on his standing objections to the adoptive parents. It was held in August, 2016. The Court held a hearing and on August 8, 2016 found that the adoptive parents did have in loco parentis standing. Father promptly appealed.

The Superior Court found that the order conferring standing was an appealable collateral order under Pa. R.A.P. 313(a) citing the Supreme Court opinion in K.C. v. L.A., 128 A.2d 3d 774 (2015). That decision held that an order denying intervention in a custody case was appealable as standing in this kind of case assume a constitutional aspect.

The published panel decision of March 6 holds that orders allowing third parties to assert custodial rights “burdens the constitutional rights” of parents. Citing the Supreme Court of the United States ruling in Troxell v. Granville, the Superior Court noted that custody litigation itself disrupts family life, language echoed in Justice Baer’s opinion in D.P. v. G.J.P. The majority finds that failure to end the litigation and afford Father his custodial rights created both a financial and human burden in terms of facing continuing litigation with non-parents. Under these principles, the appellate court confirms that it must act on the collateral order appealed.

Turning to the merits of adoptive parent standing, the court notes that this is addressed on a de novo basis as it is a threshold issue. It notes that aside from parents and grandparent’s only persons in loco parentis have standing. Under T.B. v. L.R.M., the Supreme Court held that one cannot have in loco parentis statute without parental consent. In this case, Father never provided any consent to the placement antecedent to adoption proceedings. A third party cannot place himself in loco parentis without consent of the parents. Gradwell v. Strausser, 610 A.2d 999,1003 (Pa.S. 1992). In re C.M.S. was distinguished on the basis that the natural father in that case had allowed the placement to continue for more than a year before asserting his rights. 832 A.2d 457 (Pa. Super. 2003).

Parents are presumed to be fit. Hiller v. Fausey, 904 A.2d 885. The lack of fitness has its own mechanism for adjudication but those require all the elements of due process absent in what seems to be an aborted adoption proceeding. The adoption agency is taken to task for its labile approach to finding Father and pursuing his cooperation in the months before the child was born. The adoptive parents are to be dismissed from the case and it will proceed with Mother and Father as the parties in interest.

The takeaway here is that where a natural parent moves quickly to assert parental rights, third parties are going to have to stand down unless action is taken to show that the natural parent is somehow unfit. The problem in this instance is a practical one of longstanding. Adoption agencies have a child delivered. They need to make a placement and they do. Now we have an expectant family that risks loss of a child they have long awaited. If we are serious about the constitutional rights of parents, the adoptive placement should have ended after eight weeks and not more than a year. One can understand the reticence of giving a Father who has just appeared on the scene primary custody of an infant. But, it is the only intellectually honest choice given the constitutional issue involved.

K.W. v. S.L. & M.L. v. G.G   2017 Pa. Super. 56 (March 6. 2017)

For some time now, the General Assembly has been working towards amendment of the Divorce Code to reduce the waiting period for an unconsented no-fault divorce from two years to one. That legislation (House Bill 380) has passed committee and is awaiting final action.

Meanwhile another amendment to the Divorce Code quietly slipped through the legislature and was signed into law by the Governor on April 21, effective June 21, 2016. It is an odd piece of legislation; a kind of fault based no fault divorce ground.

Under House Bill 12 of 2015 (printer’s No. 2404) if one spouse has been convicted of a misdemeanor or felony involving

Criminal homicide

Assault

Kidnapping

Human Trafficking

Sexual Offense

Arson

Robbery

Victim/Witness Intimidation

Homicide by Vehicle

Accident Causing Death or Personal Injury

AND the Plaintiff sues for a mutual consent no-fault divorce, the consent of the convict is “presumed” if the Plaintiff is the victim of any of these crimes.

This is the first time this writer has seen the bill and I begin by confessing that I have not studied this subject very carefully. But if I am the victim of homicide or an accident causing death, one of the formalities I can dispense with is a posthumous divorce from my perp spouse.

I do offer that perhaps the intention is to include attempts at homicide or personal injury but the statute is not very clear on this subject.

I also note that for more than a century Pennsylvania has conferred divorces for “treatment” endangering the life or health of an innocent and injured spouse (Section 3301(a)(4) and conduct amounting to “indignities” to an innocent and injured spouse such as rendered the life of the victim intolerable and burdensome.(Sec. 3301(a)(6). Conviction of any of the above specified crimes in a case where the victim was a spouse would have res judicata effect in the subsequent divorce proceeding.  The only plausible defense would be that the victim was not innocent and injured.

The new statute requires a conviction to create a presumption. The statute does not make the presumption irrebuttable so, one must assume that a defendant spouse can still force the victim to trial so that the offender may rebut his presumed consent.  Even more vexing would be the task left to the trier of fact.  Husband attempts to kill or rape wife.  He is convicted but somehow draws a sentence of less than two years (another divorce ground under Sec. 3301 (a)(5).  Wife sues for divorce and tenders her own consent and the “presumed” consent of her spouse.  The offender spouse appears and testifies under oath that he does not consent.  What now?  Can the Court hold that he consented when he didn’t?  Wasn’t it just easier the old way, where the injured spouse tendered a certified copy of the conviction and rested her case?  Yes, the offender spouse could argue and present a case that his wife/victim was neither innocent nor injured, i.e., she deserved her beating or rape or robbing or burning.  But, I think that I like my chances of getting my client divorced better this way than relying upon a presumed consent that may be rebutted.  I know how to cross examine a person who claims the spouse got what she deserved. I’m not so sure how to cross a guy who says simply “I don’t care about the statute, I do not consent.”

So we have a change in the law, but I am not certain it can be termed an “advance”. One small consolation is an amendment to Section 3302.  This is the counseling provision and it now states no counseling can be ordered where one party has a Protection from Abuse Order or where one of the specified crimes listed above has resulted in a conviction.  Of course, one can still insist on the counseling while the criminal charges are pending unless a PFA found its way onto the docket.

This is not a criminal law blog. But domestic clients sometimes trip over the criminal law “wire” while trying to do seemingly innocent things for “good purpose.”  A classic example is the business of recording a spouse, a child or some other individual to prove “what really happened” at a particular time and place.

Advances in cellular technology now equip just about every form of PDA with the capacity to record and store voice memos. It’s a handy thing for a shopping list or to compile things to tell your lawyer to do.  Of course, the built in microphone has the power to capture voices other than yours and therein lays a problem.

We have written before that Pennsylvania has an old free ranging anti-wiretap statute premised upon what is termed “two party consent.” In a word, this means that before you start to record someone besides yourself, you will need the consent of all of the participants being recorded.

In 2014 the Supreme Court decided Commonwealth v. Spence, 91 A.3d 44.  It is an odd case involving a state trooper overhearing a conversation on a cellular phone while amidst a traffic stop.  In that case, nothing was recorded and the Supreme Court noted that under 18 Pa.C.S. 5702 telephone and telephone components are excluded from the “devices” for which interception is banned.

The panel decision in Commonwealth v. Smith decided on February 19, 2016 represents an attempt to expand the holding in Spence. In Smith the defendant decided that he wanted to record a conversation he was having with his supervisor at work.  When he was later terminated, he sued.  The conversation, recorded without the supervisor’s consent on “voice memo” was later revealed in discovery and it appears the employer turned the matter over to a York County prosecutor.

The defendant asked for the charges to be dismissed because his PDA (the Court uses the title “smartphone”) was a component of the cellular phone and therefore theoretically within the ambit of Section 5702 exemption from the criminal statute as a component to a telephone.

The Superior Court’s reported decision (citable as precedential) holds that the amalgamation of a voice recording application to a “telephone” was not intended to provide protection for surreptitious recording. “The fact that the {defendant] used an app on his smartphone, rather than a tape recorder, to do so, is of no moment.”  In contrast the cellular phone in Spence was being used as a telephone, where here the same device was used purely as a recording device.  The Court took note of Commonwealth v. Diego, 119 A.3d 370 (Pa. Super. 2015) There an incriminating text was sent via an Ipad which was routed through a cellular phone service.  The trial court in Diego held that because the Ipad was being used as equivalent to a telephone, the message could not be admitted.  The Superior Court reversed, declining to expand the definition of telephone and component beyond cellular phone transmission itself.

So the recent update is (1) your recording app is not exempt from the wiretap law because it is arguably a component of your telephone and (2) text messages (at least those not sent from a cellular phone) are subject to interception even though transmitted through cellular lines.

MAZUREK v. RUSSELL   2014 Pa Super. 130 (2014)

College provisions in property settlement issues have always been a source of controversy.  The typical provision calls for mutual consent “which consent shall not be unreasonably withheld”.  The language seems clear enough when pen is set to paper but when enrollment time comes the games begin as mother has one set of ideas and father another.  The other wrinkle is that by the time college rolls around a child may be estranged from one parent.  So what is “consent” and can it ever be reasonably withheld?

A case decided on June 24 affords us some insight into these questions.  In Mazurek v. Russell, the parties agreed in 2010 to the typical language recited above.  When Mother filed an emergency petition to compel payment for one of the children to attend Marymount Manhattan college in NY, Father blasted back with several defenses including:

1.            Son had lackluster academic performance in high school;

2.            Son had been estranged from Father for five years despite Father’s best efforts. 

Father then said, he would pay if Luke reconciled with Father, maintained a 3.0 GPA and did not take a car.  His terms were not agreed to.  He then noted that there had been no consultation about the school selection.  

A hearing was held in late July, 2013.  The trial court heard evidence and ruled that Father was on the hook for the college and Mother’s counsel fees. 

On appeal a panel of the Superior Court found the “not unreasonably withheld” consent language to be ambiguous as a matter of law and subject to parole evidence to help interpret the intent of the parties.  The Court then looked at two conflicting cases where consent has been an issue.  The first, Fina v. Fina, 737 A,2d 760 (Pa. Super, 1999) held that mutual consent language required meaningful interaction.  A second case, Wineburgh v. Wineburgh, required payment on the basis that the agreement’s use of language that Father would “have a say” did not require consultation. 

The Mazurek Court sided with the ruling in Fina, noting that “we cannot ignore the significant of {mutual consent} language to which the parties contracted.  The Court found that Father evinced a reasonable basis for withholding his consent.  It also appears from the opinion that Father’s prior history of paying large sums for private secondary school for all children and private college tuitions for two other children were factors that weighed in his favor.  

There is an interesting twist to this reported opinion.  Judge Allen devotes a fair amount of time to discussing the estrangement issue and the opinion has a strong flavor of Judge Cirillo’s famous opinion in Milne v. Milne, 556 A.2d 854 (1989) where nine judges of the Superior Court decided that a child’s conduct toward a parent could be grounds to forfeit what was then a judicially imposed, non-contractual duty to contribute to college.  The question the bar will grapple with in the wake of this opinion is whether “reconciliation” with a parent is a necessary component to consultation and consent.  What makes the question even more complicated is that if Father’s testimony is to be credited, he was estranged from his child two years before he contracted to pay 100% of his reasonable expenses for college.  Did Father not have the last clear chance to demand “reconciliation” as a condition to assuming this pricey obligation?

One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother’s maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn’t coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans’ Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans’ Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans’ Court about the means and method Father employed to engineer an adoption of a child he wasn’t too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn’t having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: “It was a different inquiry {in Orphans’ Court}. {That Court proceeding}… had a different focus, a different responsibility. ….  I make my own credibility findings.”

As the Court observed, it was not there to redress Father’s purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans’ Court and the Superior Court with respect to Father’s “adoption” proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father’s conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.