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.

The Arizona Court of Appeals issued an opinion in the custody case of Steve Nash, the point guard for the Los Angeles Lakers.  The opinion upheld the trial court’s decision, which prohibited either party from disparaging the other on social media.  The issue arose initially when Nash’s ex-wife tweeted some disparaging comments about Nash.  Nash’s ex appealed the trial court’s decision, claiming that it infringed upon her First Amendment rights.

tweet pic

The Court of Appeals, in upholding the trial court’s prohibition of disparaging comments, relied heavily on the fact that the parties had reached an agreement in their custody matter that contained language forbidding either party from speaking poorly about the other.  In doing so, the Court found that the parties had agreed to restrictions on their rights to free speech.

Unfortunately, while this case provides some guidance, because of the narrow ruling which relied on the parties’ agreement, it doesn’t answer the question of whether one parent can be prohibited from expressing his or her negative views about the other parent.

 

 

Despite that it is only early October, the holidays will be here before you know it.  Retailers are ready, with aisles full of Halloween and Thanksgiving decorations.  If you share custody of your children, you should be ready too.  Here are a few tips:

1.            KNOW WHAT YOUR CUSTODY ORDER SAYS:  Even if you think you remember who gets Christmas this year or what time you exchange the children on Thanksgiving, take your Order out of your desk and read it again, sooner rather than later.  It is much easier to discover now that it isn’t your year to have the kids on Christmas Eve than on December 23.

2.            MAKE YOUR TRAVEL PLANS NOW:  Custody Orders often have specific times that children need to be back to the other parent.  You will have much more luck booking airline tickets that fit into those restrictions if you book now than if you wait until the last minute.  And if you cannot make arrangements that work within the constraints of your Order, you will likely get a lot more understanding from the other parent if you ask now for some flexibility as opposed to the day before you travel.

3.            COMMUNICATE WITH THE OTHER PARENT:  While this may sound less appealing than traveling on Thanksgiving, it is important to make sure that you and the other parent are on the same page and have the same understanding about the holiday schedule and holiday travel plans.  It can be as simple as sending a calm, straightforward email setting forth your understanding.  Or, if communication comes more easily, you can pick up the phone and call. 

holiday

 

 

Remember earlier this year when I wrote about the Superior Court’s ruling that a party has a right to a de novo hearing for a custody coordinator’s decision? Well, forget all of that.  As of today, April 23rd, the Pennsylvania Supreme Court adopted Rule 1915.11-1 which states that parent coordinators are no more and the only judges have the authority to make decisions in child custody cases.  The new Rule reads as follows:

Only judges may make decisions in child custody cases.  Masters and hearing officers may make recommendations to the court.  Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases.  Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013).  Local rules and administrative orders authorizing the appointment of parenting coordinators also shall be deemed vacated on the date this rule becomes effective. 

The role of the parent coordinator was established and upheld by the Superior Court in the Yates decision in 2008.  The revised Rule, which was adopted by the Supreme Court upon the recommendation of the Domestic Relations Procedural Rules Committee and after an opportunity for public comment, supersedes the case law and renders null and void any existing parent coordinator order.   

So ends the quasi-judicial role of parent coordinators.  Whether this results in an uptick of contempt and custody modification petitions remains to be seen, but as it was so eloquently put by the (clearly exasperated) trial judge in the A. H. vs. C.M. case (in which the Superior Court upheld the right to a de novo review of a parent coordinator’s decision) judges may need to brace themselves to deal with an increased amount of "some talent show communication[s].”

Pennsylvania formalized the use of Parent Coordinators in custody cases several years ago when the Superior Court’s rendered their 2008 opinion in the case of Yates v. Yates. As part of the Yates decision, the Superior Court held that the appointment of a Parent Coordinator in a high conflict custody case was a reasonable exercise of discretion and did not constitute the delegation of judicial authority to a quasi-judicial body (i.e. the Parent Coordinator). The Superior Court also established the parties’ due process rights to a de novo review of the Parent Coordinator’s decision by the Trial Court. A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

 

The issue of a party’s right to a de novo review and what that review ought to look like was recently considered once again by the Superior Court’s December 18, 2012 opinion in the matter of A. H. vs. C.M., 2012 WL 658 6356 (Pa.Super.). In this case, the mother appealed the Trial Court’s decision not to conduct a de novo review of a decision of the Parent Coordinator and, instead, affirmed the decision without taking testimony or otherwise conducting a hearing on the record; basically, the Trial Court rubber-stamped the Parent Coordinator’s decision.

 

The first step in looking at what happened in the A.H. case is to consider how the parties are able to get their issues before the Trial Court. The basic procedure for appealing Parent Coordinator Orders was written in the Order appointing the Parent Coordinator to the case and allowed a party who disputed the Parent Coordinator’s decision twenty (20) days to file a Motion for review with the Trial Court. Upon filing for a review of the decision, the Trial Court would then make an independent determination as to whether the decision represents an abuse of the Parent Coordinator’s discretion or is contrary to fact or the law.

 

In the A.H. case, the mother made the appropriate appeal to the Trial Court, but found a less than receptive audience when she had her day in court; the mother was only given four (4) minutes by the Trial Court to make her argument. The Trial Court relied upon a summation by the attorneys of the Parent Coordinator’s decision in affirming the Coordinator’s Order. Interestingly, the Court recognized that Yates applied to this process, however, they essentially found that the de novo hearing was not needed in this instance. The Superior Court, in reviewing the appeal, determined that the Trial Court’s decision not to conduct a de novo review was wrong and that Yates firmly establishes that Parent Coordination has its own procedure, is subject to due process, and that the Trial Court may not deny mother a hearing de novo. By not giving her the opportunity to present her case in its entirety, the Superior Court found she was denied due process rights.

 

As a result, the Superior Court reversed the Trial Court’s decision with respect to mother’s appeal of the Parent Coordinator’s Order and directed that a de novo review be held by the Trial Court within thirty (30) days and that the Trial Court outline the Parent Coordinator’s decision in a manner consistent with the Superior Court’s holding in Yates. Worth noting is that the Trial Court may reach the exact same decision as they did the first time, but at least the mother will have had the opportunity to offer evidence into the record.

 

An interesting side note to this case is that it gives a glimpse into the level of frustration courts can reach when dealing with "frequent flyer" parties who are always bringing each other back to court. The Superior Court points out the reference to the Trial Court not wanting to see the parties back over "some talent show communication." I suspect these individuals were very familiar to the Trial Court judge and had likely litigated similarly inane issues which unnecessarily took up the Court’s time – which is exactly why a Parent Coordinator was appointed in the first place. Access to the Courts, however, is a fundamental right and the Superior Court cites the Pennsylvania Code of Judicial Conduct when addressing the comments from the Trial Court; such comments from the bench could have a chilling effect on people and discourage them from bringing important issues to the attention the court.

 

Parent Coordination can be a useful tool to address "talent show communications" but it is the procedure for being able to appeal those issues which allows for the overall process to effectively operate in a fair manner towards both parties. The opinion of A.H. v. C. M. affirms the Court’s decision in Yates (which, coincidentally, featured my colleague,

 

Natalie Famous, Esquire as the Parent Coordinator) and definitively establishes the due process procedure for addressing appeals of the Coordinator’s decision.

 

Referenced cases can be found at: Yates v. Yates, 963 A.2d 535 (Pa.Super. 2008); A. H. vs. C.M., 2012 WL 6586356 (Pa. Super.)

 

(Image: http://tennesseelabortalk.com)

While this topic of this blog post is not exactly what this blog typically covers, I frequently find that litigation in another areas of law either impacts or illuminates an issue dealt with by our family law clients.  One such example would be a recent decision at the Eastern District of Pennsylvania interpreting various terms of the Family and Medical Leave Act (“FMLA”).  In that case, a mother had to take off time from work in order to find a new daycare for her autistic daughter who has significant developmental disorders and physical impairments.  Her employer, Reading Hospital Medical Center, opposed the use of FMLA leave for this purpose.  FMLA leave is designed to allow an individual to take time off from work to address family medical issues without the risk of losing their job.

 

The Honorable Timothy J. Savage of the Eastern District looked to the Americans with Disabilities Act (“ADA”) to help identify whether or not the mother’s daughter had impairments which would cause her to fall within the “serious health condition” category of the FMLA.  In doing so, there was also the interpretation of whether the change in daycare constituted “changes in care” as it is contemplated by FMLA regulations.  As drafted, the regulations are silent as to whether moving from one non-medical facility to another constitutes a “change in care,” as it would otherwise be considered when moving someone to a facility offering medical treatment.

 

Judge Savage’s opinion would appear to expand the definitions of some important FMLA terms, but Reading Hospital Medical Center disagrees and does not consider the holding to be a significant expansion of FMLA regulations; they believe Judge Savage’s opinion addresses their narrow set of facts and does not have a broader application beyond this case.  Nevertheless, the holding seems to make a persuasive argument that the regulations now include changes of care for a family member with a serious medical condition, even if the change of care relates to a non-medical facility.  The designation of the medical condition of the individual will dictate whether the time off to facilitate a change in care falls within the protections of the FMLA.

 

 The application of this case to family law is that informs both attorneys and clients as to how much flexibility they have to make appropriate child care arrangements for a special needs child during work hours.  This could be extremely important to a client with a disabled child who has either a limited support network or a difficult (or even non-existent) custodial arrangement with the other parent. Maintaining consistent child care can be challenging under the best of circumstances, but when medical and developmental issues of a child are factored in, it makes a difficult situation that much harder.   For a single parent, child care coverage means maintaining employment and stability for the child; it would seem like Judge Savage’s opinion reasonably fits into the purpose behind the FMLA.

 

For more information about other employment discrimination issues, go to Fox Rothschild’s Employment Discrimination blog written by Richard Cohen and Christina Stoneburner of our New York and Roseland, NJ offices, respectively. 

 

The case involved is Wegelin v. Reading Hospital Medical Center.   An article on the case was written by Saranac Hale Spencer (sspencer@alm.com) and published in the December 4, 2012 issue of the Legal Intelligencer (Vol. 246, No. 108).

You are a lawyer who is getting calls from your client on every detail of his custody schedule.  Or you are a parent, and you and your former spouse can not agree on even the most minor issue of the custody schedule.  If you fit into either of these categories, a Custody Parent Coordinator may be very beneficial in the situation. 

Some examples would be:

  • “The kids were supposed to be home at 7:00 P.M., and it’s 7:35 P.M., you’re late – again – see you in Court.”
  • ‘What are you doing here – it’s my turn to come to the basketball practice – quit bothering me or I’ll see you in Court.”
  • “How could you leave our child alone at your house while you ran to the grocery store, she’s only 12 – we’ll see what the Judge says about this.”
  • “I paid for the school pictures, why did you take them out of his backpack – I’m filing a petition.”

Does any of the above sound familiar?  If so, you are not alone.  Many families struggle with issues such as these even after they have negotiated or litigated a custody order.  Until recently, the typical way to resolve such disputes was to file a petition for contempt or to modify the custody schedule.  And, depending upon what county you live in, resolving these issues could take anywhere from four weeks to over one year. 

About one year ago, a Bucks County Judge had such a “frequent flyers” case where the parents found themselves in Court time and time again to resolve minor disputes. The Court dismissed a petition that requested that the Court determine how far each parent should drive to a midway point for pick-ups and drop-offs. The Court’s opinion stated that the its function was not to resolve such minor details of a custody situation and that parents should resolve these issues outside of the courtroom.

Since then, the position of a Parent Coordinator has truly emerged.  A Parent Coordinator can be a psychologist or a lawyer, as typically these professionals are experienced in dealing with high conflict families.  A Parent Coordinator may be appointed by the Court to:

  • Assist the parties in resolving issues arising out of the custody order through consultation with and the educaton of the parties;
  • If the parties cannot agree upon a resolution of their conflict, then the Parent Coordinator has the Court’s authority to resolve a dispute by issuing a binding decision to the parties.

A Parent Coordinator works directly with the parties outside of the courtroom.  In many cases, Parent Coordinators work with clients through e-mail, telephone or in-person conferences.  The Coordinator’s function is not as a therapist.  Typically, the parties share the cost of the Parent Coordinator in a fair way, oftentimes in proportion to their income.  Decisions by a Parent Coordinator are appealable to the Court.

Parent Coordination is a new function of Family Court, and one that is being welcomed by many judges, lawyers, therapists and families.  It is a less expensive alternative then proceeding to the courthouse each time a minor dispute arises, and provides a quick result for the parties.