Earlier this month Delaware became the eleventh state to legalize same sex marriage when they passed Marriage Equity Act in the state Senate.  Passage was fairly close with 12 voting for the Act and 9 voting against it in the Senate, while the House had earlier passed it 23 in favor to 18 against.  Leslie Spoltore has provided the synopsis of the Act on our Delaware Trial Practice Blog as well as a link to the complete Act.

 

College football recruiting can become, for a sought after recruit, the perfect intersection of where talent meets commoditization; in other words, recruiting is where the athletic talents of the amateur student-athlete attract the attention revenue generating college football programs.  Recently, however, an incident between a student-athlete and his mother highlights the conflicting agendas and motivations that people may have in a student-athlete’s life. 

 

Alex Collins is a running back from Plantation, Florida. He’s rated as the fifth best high school running back by a service that evaluates players.  A talented player such as Alex will garner national attention from major football programs.  Surprising many people who thought he would stay near home at University of Miami, Alex, instead, chose to attend the University of Arkansas. 

 

(Photo by www.atlantablackstar.com)

We have explored in this blog the family law issues that can arise for professional athletes and how their families can create problems and require the intervention of attorneys, if not the police.  Alex Collins situation on the National Letter of Intent Day highlighted that it is not just professional athletes who have this issue, but that the interference of family and friends in an athlete’s life really begins in high school and through the college recruiting process.

 

This year, the earliest a graduating senior could officially commit to play a sport at the college level was on February 5th which has become known as the National Letter of Intent Day.  Typically, however, a student-athlete signs their “letter of intent” – which are more appropriately called “grant-in-aid” letters – and commits to playing their sport the following year for a university in exchange for having all or some of their costs covered by the institution.  It is an important milestone for a student-athlete that has grown in media coverage over the past several years, so much so that your can find webcam coverage of schools’ fax machines as the letters roll in.

 

Alex’s school scheduled a media event for the morning of February 5th where he could sign his letter of intent, however, it appears his mother disputed the decision so strongly that she took the letter and fled the premises of the school, thereby preventing her son from becoming a Razorback.  According to news reports, Alex’s mother wanted her son closer at home at the University of Miami.  Speculation ran rampant as to whether there might be more nefarious factors in play (universities and the NCAA have had to deal with inappropriate financial benefits paid to recruits from boosters and third-parties for decades).

 

The application of this fiasco to family law is unique – Alex is a minor and could not sign his letter of intent and other documents to attend Arkansas without a parent.  By taking his letter and refusing to sign it, Alex’s mother was making a last ditch effort to keep her son closer to home (perhaps not her last ditch effort – she’s hired the late Johnnie Cochran’s law firm, The Cochran Firm, to represent the “family’s interests”).  Alex’s father subsequently co-signed his letter of intent and Alex – for now – will play at Arkansas next year.

 

(photo by www.atlantablackstar.com)

It begs the questions: who has the right to sign off on a child’s college choice when they are a minor?  How much contact can a school have with a recruit and can a parent bar access to their child?

 

In Pennsylvania, a child is a minor until they reach eighteen (18) years old and under 23 Pa.C.S.A. § 5101, any individual 18 years of age or older shall have the right to enter into binding and legally enforceable contracts.  Due to the fact that direct recruiting from college coaches can begin when a student-athletes are in their junior years (written correspondence starts earlier), parents wield varying degrees of influence and can control access to their children by college coaches.

 

This is a difficult path to navigate for college coaches. Brian Flinn is the wide receivers coach and recruiting coordinator for Villanova University and identified it as standard policy that all letters of intent and applications must be co-signed by a parent of the recruit if they are a minor.  Moreover, he acknowledges the importance of developing rapport with the player and the parents. “It’s important for us to be honest and upfront each step of the way so parents can trust us and our programs,” says Flinn. 

 

The stress of recruiting, as highlighted by the Collins situation, is not limited to the kids. “If we haven’t built a solid relationship with the prospect and his family we run the risk of losing him when they are overloaded with information – and misinformation – as Signing Day approaches.”  The advent of social media, according to Coach Flinn, “opened channels to prospects that were previously unavailable…and has also given opposing coaches access to your committed prospects – making it even more important to build a great relationship with prospects and their families.”  In the end, Flinn believes, all of the influences, social media, and attention really has not changed the fundamentals of recruiting: “find the players that best fit your program and left them know, honestly, why your university is the best place for them for the next four years and a foundation for the rest of their lives.”

 

Under Pennsylvania law, theoretically, the issue of college education is not specifically addressed in the code and is specifically excluded as an expense requiring contribution to by the parents under the Support Code.  During the period of time the child is a minor, however, I could see how one parent could leverage their legal custody rights to block a university’s access to their child, or otherwise prevent the child from taking a visit to the school.  If Alex Collins lived in Pennsylvania and his parents were separated with joint legal custody, could his mother have sought judicial intervention under the custody order to prevent Alex’s father from signing the letter of intent? Reasonably, it would seem that no matter what the actions of his parents, Alex will be able to attend whatever school he chooses as soon as he turns eighteen; perhaps he would have to wait to officially commit to a school until his birthday, but I can not fathom a court intervening to decide where a student-athlete like Alex would go to school; unlike elementary or high school, the Court would not engage in an educational analysis to see whether one university is better than the other.

 

Alex Collins situation is an unfortunate combination of the competing interests among the adults in his life interfering with his decision as to where he will attend school.  An optimist would say that all of those involved in Alex’s decision have his best interests at heart.  That said, based upon the events surrounding his recruitment, perhaps there is a more obvious reason why he’s moving half-way across the country for school?

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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.

 

There has been quite a bit of litigation and court decisions related to the Defense of Marriage Act and how it impacts state laws and the ability of states to enact federal laws due to different definitions of what constitutes “marriage;” traditionally, states have been left to decide how to handle domestic issues and the DOMA has been viewed as infringing on that area.

I examined some of those recent federal court decisions involving the DOMA and how they could impact a pending Pennsylvania case for this month’s issue of the Pennsylvania Bar Association’s “Pennsylvania Family Lawyer."

 

http://www.pabar.org/public/sections/famco/pubs/newsletters/pfl%20oct12.pdf

Leslie Spoltore, a partner in our Wilmington, Delaware office, just posted a blog entry on an unusual alimony argument made on appeal to the Delaware Supreme Court.  The family court evaluated the ex-wife’s expenses when calculating alimony she would pay to her ex-husband and reduced the significant contributions she made to her church down to what it deemed a "reasonable" amount of $100.00.  The Court considered it a voluntary reduction in income. This is not unlike how Pennsylvania’s courts add back, for instance, voluntary contributions to 401(k) accounts when calculating child support and alimony pendete lite. 

On appeal, the ex-wife claimed that the Court’s assessment of alimony based on their consideration of her available income resulted in her inability to appropriately tithe her church and violated her First Amendment freedom of speech.

It is an interesting and creative argument, but did not carry her case and the Supreme Court ruled the family court could consider any factor it deems appropriate and nothing prohibited her from contributing as much as she would like to her church.

Read Leslie’s blog entry and link the decision here.

Pennsylvania has recently made considerable changes and revisions to the support section of the Rules of Civil Procedure; some are more significant than others, but one which may make things a little easier for parties and counsel alike is the revision to Rule 1910.11 which goes into effect January 31, 2012.

Rule 1910.11 will make it a requisite that all support conferences result in a guideline calculation. Specifically, it states that the parties “must provide income information” so that the conference officer can perform a guideline calculation. The only exception is where the parties are represented by counsel and have reached an agreement about the amount of support and contribution to additional expenses; otherwise, everyone else gets a support calculation.

 

The result of this change is that unrepresented parties and attorneys will have more information to help them understand the support obligation and how it was arrived at by the conference officer. This will also provide valuable information for attorneys who are not involved in the case until after the initial support conference; having a support calculation and basic income information will result in a more complete Domestic Relations Office file and, by extension, allow attorneys and their clients to be better prepared for the next step of the process (which may vary depending on practices of each county).

 

Though not a major overhaul of the rules or as nuanced as some of the other revisions we have seen over the past year, this revision may have the most day-to-day impact on litigants and attorneys.

I recently fielded a phone call from a disgruntled father who wanted to complain about his child’s mother’s failure to adhere to following a religious faith. He claimed that her dating another man violated the custody order’s requirement that the child be brought up Catholic.

While the child goes to Catholic school and regularly attends church, this father seemed to believe that her decision to date someone (he is remarried) and introduce that individual into their son’s life violated a tenant of the Church. Interestingly (or ironically), he does not seem to find his divorcing of the child’s mother and remarriage to be problematic, despite the fact that Catholicism takes a dim view of divorce.

 

Religion in custody cases is a legal custody issue. What’s more, it is an issue in which the parties DO NOT need to reach an agreement on how the child is raised. Basically, each parent gets to bring up the child in their particular religious faith. We talked about religious decisions previously, and it is worth taking the time to examine Pennsylvania’s case law on the topic.

 

Pennsylvania case law has evolved over the years to consider whether the introduction of a religious faith would pose a grave threat of harm to the child. The facts of a few Superior Court and Supreme Court of Pennsylvania cases shed light on how the Court views religious issues as a consideration, but with a considerable amount of latitude for the parties’ Constitutional rights to free speech and religion. For instance, the courts have upheld a parent’s right to espouse plural marriages – though such marriages are against the law – so long as the child is not subject to a plural marriage (Shepp v. Shepp, 821 A.2d 635 (Super. 2003); having a child baptized in one faith over another (Hicks v. Hicks, 868 A.2d 1245 (Super. 2005) does not violate legal custody rights, and; deciding that a Father’s practice of Neo-paganism was not detrimental to the development of the child (Luminella v. Marcocci, 814 A.2d 711 (Super. 2002) also helped shape Pennsylvania’s consideration of religion in custody cases.

 

The net effect of these cases seems to be that religion will be under the purview of the parties, not the Courts and that so long as it does not place the child at harm or subjects them to participating in illegal activities, then the custodial party’s religious choices are as valid as the other’s.