Archives: primary custody

In a decision published on May 6th of this year the United States Tax Court held that the Treasury Department and the Internal Revenue Service were not bound by state court rulings that allocate child dependency deductions for federal income tax purposes.

In Shenk v. Commissioner, a state court divorce judgment had assigned to a Father the right to claim the dependency exemptions for all three of his children, even though they lived primarily with their mother, provided that he was current with his child support. In violation of the state court judgment, the former wife refused to execute Federal Form 8332 which is required for non-custodial parents to claim the exemption.

Notwithstanding the state court ruling Tax Court judge David Gustafson held “ultimately, it is the Internal Revenue Code and not the state court orders that determine eligibility to claim a deduction for federal tax purposes.” Gustafson essentially put the burden on the Taxpayer to get a state court order compelling the mother to sign Form 8332.  If a parent does not have primary custody the only means to claim a child is by securing the form from the primary custodian.  A taxpayer must have that problem resolved within three years or the statute of limitations (26 U.S.C. 6501(a)) will bar an amended filing. In this case, the taxpayer did not secure the signed form within three years so the claim was lost.

In addition the failure to secure the exemption also prevented the taxpayer from claiming head of household status. Could the taxpayer sue his former spouse in state court for the additional tax and penalty prompted by her refusal to abide the state court judgment granting him the deductions?

My colleague Aaron Weems has already reported that late last month the Pennsylvania Supreme Court put an end to what was a five year experiment with court appointed ombudsmen tasked to decide minor custody disputes where the need to have a prompt resolution outweighed an assessment of how a particular custody issue affected a child’s best interests.

The Order from the Supreme Court came as a surprise to the domestic relations bar. The program was not without its problems and some of those problems were substantial. But parent coordination was created as a device to address “high conflict” custody disputes where the parties were already making frequent use of the judicial system to decide matters that had more to do with their power in contrast to the interests of the children. Because it often takes months to have a dispute decided by a judge, it was thought that it was both economically and temporally more efficient to assign routine disputes to an experienced family law attorney who would have more flexibility to resolve the dispute quickly and without fanfare. Parent coordinators were never intended to decide the underlying schedule for the children or the difficult issues of private school, relocation or the like. But when the questions related to summer vacation or whether the karate tournament was “trumped” by the decennial family reunion, it was felt by many on the bench and in the bar that a prompt decision was better than the wait and the cost associated with getting a judicial official to weigh in with his or her powers.

Obviously the Supreme Court saw this differently and said as much in its order repudiating the entire system. The Court noted that custody decisions were a uniquely judicial function and that judges were the only persons empowered to make decisions of this kind. In a technical sense, the Court was absolutely correct. The law has long held that child custody decisions were too important to be delegated to people who were not appointed or elected to serve as judges. But, in so doing, the Court seems to have missed a couple of major considerations. Those considerations merit some attention as does as discussion of what was wrong with parental coordination as it evolved over time. In the end, this writer submits that parent coordination needed reform but it abolition has worked to the detriment to all participants in the judicial process. The bench, the bar, parents and, yes, even the children, will ultimately lament the death of this quasi judicial system of dispute resolution.

The first and most important point is that what comes before courts in the guise of a custody dispute has evolved over time. Forty years ago custody law was pretty easy to predict. When a couple separated mother was awarded primary custody and father was assigned “visitation” not to exceed one day a week or every other weekend. Folks who came to court with lesser decisions such as whether their son should play football after his second concussion or whether private school was necessary were often told that the Court was not going to address “minutiae” and to “go out in the hallway and settle this.” In some Pennsylvania counties this is still the case. But times have changed and today Courts have seen an explosion in special relief petitions. Some of these disputes have been ever present. Each year parents seem to think that Thanksgiving and Christmas will magically be resolved, only to find that it is not. This week one of our lawyers will begin a custody trial to decide what should be done with the “odd” week of Summer, 2013 where the parties otherwise seem to agree to divide Summer equally. These disputes have much to do with poor planning and little to do with “best interests.”

The new breed of disputes includes whether children can be removed from school to vacation in Florida or the Caribbean. Parents now seem to be prepared to fight over what activities their children should or should not be involved in. They fight over what camps their children should attend. And last but no least are the weighty questions of whether the show rabbit contest or middle school play should prevent a child from attending his or her mother’s most recent wedding.

Respectfully, these decisions have nothing to do with best interests and everything to do with “power and authority.” If a child has been working with one parent to build a soap box vehicle only to learn that the derby is the same day the child’s mother is getting remarried, we have a conundrum but not one that affects the best interests or welfare of the child. Someone needs to resolve this dispute. That can’t be contested. But do we really require that a judge lay aside his or her other business to decide this. Is that an efficient use of judicial time in a world where more and more citizens are coming to court without lawyers. How many hours of testimony should be allocated to hearing Father testify about how the soap box car was built? Should there be a limit on cross examination? How many questions must mother endure concerning her ignorance or cavalier indifference to the needs of her son to attend the derby? I was recently slated to speak on a panel with an appellate judge. At the last moment he mailed all of his fellow panel members to advised that the seminar was the same weekend as his child’s bar mitzvah. Of course he has to cancel. But had he been a mere mortal who scheduled his son’s bar mitzvah on the same weekend as the playoff game, or the soap box derby or the rabbit competition, he might have had bigger problems than he faced with his fellow seminarians. He might have found himself sitting outside a courtroom while an elected official found time to weigh the benefits of bar mitzvah versus playoff game in which his son was slated to pitch.

These decisions cannot be dismissed as frivolous but as we noted, they have little to nothing to do with protecting children or assaying what is in their interests. They are the perfect place for a neutral outsider who has some experience with the family to call “ball or strike.” These parent coordinators do charge for their time but their cost is a fraction of what litigants spend to have pleadings prepared so that their attorneys can spend hours in the hallway of the courthouse waiting for a judge to break from his daily fare of litigation to take up the emergency baseball versus bar mitzvah dispute. Where a parent coordinator is familiar with the dynamics of the family, he or she can also bring to bear the experience of the family in making the decision. Perhaps Father has “won” the last three demands for intervention and it is time for Mother to get a “win” in her column. Judges are not going to bring that experience to the table unless this is one of those families who makes a court appearance every 8-10 weeks.

Having now sung the praises of coordinators, I close by observing that the system was not without its failures. The truth is that lots of high conflict families chewed through a succession of coordinators like weevils through cotton. There were reports of coordinators who were quick to intervene because it was a way to augment their professional practice income. Last but not least were those who were frustrated would be judges who loved to exercise “authority.” Many coordinators seemed to not apprehend that parent coordination was not a means to compensate for one party’s refusal to plan or even look at a calendar. Yes, there were problems. But in a world where Courts are being asked to live with fewer resources and more and more citizens have decided to dispense with attorneys, it is a system that warranted more consideration than it got last month.

We have written on this subject before reporting a Superior Court decision earlier this year that put a new focus on benefit to the children as a condition to successfully secure an order allowing a parent to relocate.  The rule of precedent requires trial court judges to pay attention to and follow Superior Court rulings and three recent decisions in Berks County appear to demonstrate that the trial courts are taking heed.

On August 14 Judge Scott Lash issued a ruling in Miller v. Lee.   In that case a mother’s new husband had been offered employment in Alabama. He had accepted the job and purchased a home there by the time of trial. The parties had been working under a 2009 agreement which gave Mother primary physical.  While the Court appears to have been somewhat critical of Father’s passivity concerning mechanical duties like physician appointments, it also found that Father had a solid bond with the child; that Father could not afford to travel to Alabama and that a proposed schedule that gave the child summers with Father was not an adequate substitute even though the actual time allotment was roughly equivalent.  Although the increase in the pay for the stepfather was substantial, the Court did not see it as worthy of disrupting Father’s regular involvement in all aspects of the child’s life.  It was also noted that this was not a relocation that would produce a termination if not accepted.

 

Two weeks late Judge Lash ruled in Thompson v. Stoudt.  Here the parties had an informal week on/off arrangement for their two children. Mother asked to move from Berks to Carbon county to live with another man.  Again, the court found Father’s conduct to be less than exemplary finding that Father was prone to snap at the children.  But the Court still found the relationship positive and the parties hereto fore, cooperative.  It being clear that the relocation would disrupt the 50/50 schedule and noting no enhanced benefit to the children in particular the Court denied the relocation.

 

On September 28, Judge James Bucci issued his ruling in Moore v. Moore.  In this case the parents had adopted a child from West Africa and brought him home to Berks County.  Shortly thereafter the couple separated but they shared the now six year old child on an equal basis.  Mother formed a relationship with a man who resided in Delaware County and filed a request for relocation.  Shortly thereafter she enrolled the child in activities in Delaware County and otherwise presumed that her request would be granted despite Father’s filed opposition.  The Court took umbrage at what it perceived to be a desire on mother’s part to relocate the child before the Court could act on her request.  With Mother having sold her home in anticipation of the relocation, the Court ordered that the child reside primarily with Father until the relocation trial could be held.  Following the trial the court made the temporary placement permanent holding that Mother’s approach to the entire matter was disruptive to a young child who already had endured a move from one continent to another and a fairly immediate divorce by his adoptive parents.  While Mother posed that the school system in Delaware County was superior to that in Berks, the Court found that any advantages the school system might offer were undercut by the potential loss of continuous contact with the Father.

 

Each of these opinions is extensive: 20-30 pages.  Both litigants and their counsel are encouraged to study how courts are addressing these intensely emotional cases.  The first two cases are PICS Case Nos. 12-2128 and 12-2145.  As we have reported earlier, the moral to the story appears to be that relocation is not going to be easily granted unless there is a well defined plan and a palpable direct benefit to the child.

Whenever there is a deep-seated dispute concerning which parent, if either, should have primary physical custody of a child, a question commonly asked is whether the Court should have the benefit of a formal custody evaluation.  These studies, most often undertaken by psychologists, attempt to evaluate the relative parenting skills of the parents and seek to measure those skills against the perceived needs of the subject child.  The rules of civil procedure authorize courts to order such studies either by agreement or the request of one party. Technically, because these studies involve expert opinions, each party is entitled to his or her own expert.  But Courts actively discourage this not only because the evaluations are expensive (typically $5000-7500) but because experts separately hired by each parent tend to be viewed as “hired guns” for their employers.  The vast majority of such studies are jointly undertaken by neutral evaluators who is tasked to identify what custody arrangement would be in the best interests of the child involved.

The typical evaluation follows a fairly routine protocol.  Most evaluating psychologists send each parent a packet of information intended to secure a history of the individuals, their families of origin (i.e., their parents), the relationship that gave birth to the child and what has transpired since that relationship dissolved.  They will commonly ask for collateral contacts who can verify the accuracy of the information submitted.  If either parent is already involved with a mental health professional, the evaluator will typically ask permission to discuss the matter with the treating professional (e.g., psychologist, psychiatrist, counselor or social worker).  Having secured this information the next step is ordinarily a face to face interview with each parent conduct without the other parent present.  At some point in the process many psychologists want to see the dynamics of both parents together in the same room.  Some like to observe this early in the evaluation; others make it a last step before completing their reports.

Except in instances where the child is too young to effectively communicate, most evaluators want to separately interview each child involved.  They may also want to see the child interact with each of his or her parents either in the evaluators office or in the home where that the parent and child occupy.  The children are often tested using tests directly intended to help the evaluator determine which parent the child is more closely bonded with.

Parents are also commonly tested using devises like the much joked about Rorschach ink blot test and the MMPI (566 yes/no questions that seem pretty bizarre when you read them).  These tests are intended to assess whether either parent has a diagnosable mental condition.

So what comes out of all this. In the vast majority of cases, not much beyond a lengthy written report.  First, most people don’t have a diagnosable mental disorder and in many situations we read that much of the supposed aberrant behavior is attributed to a kind of “divorce syndrome.” The stress of separation and custody litigation does often cloud judgment and create reactive parenting. Second, even people who have mild disorders can still be very effective parents.  Beyond the testing, many judicial officers don’t find the reports very helpful, especially as children grow to be old enough to articulate their own views.  But despite these limitations clients and many attorneys continue to believe that these reports can “win” the case and Courts are inclined to permit evaluations to go forward often because there is hope that a custody evaluation will provide a springboard to case settlement.

No, this is not about Brittany Spears, but it is about how courts determine custody arrangements between two parents who cannot agree.

The legal determination that a court must make is what is in the best interest of the child. This gives the court a lot of power and each custody case is different because each child and each set of parents are different. If you want to know how to lose custody—read all about Brittany.

If you’d like to improve your chances of having a lot of time to spend with your child or children, try everything you can to co-operate with the other parent and NEVER speak badly about that person when your child is around.

When these things do not work, the court will want to know about your rules for the child. No rules—no primary custody. Your job is to parent your child, not be her/his best friend. Along these same lines, the court will want to know how often you meet with the teacher, take your kid to the doctor and dentist, and how many activities and sports events you attend.

The court will also want to know if your schedule will help your child maintain his/her activities and friends, or whether it disrupt the child’s schedule. The court will want to talk with your child, but not to find out where the kid wants to live, but rather what kind of kid this is and how happy/unhappy this child is as a result of having to go to court because the parents can’t reach an agreement.

Helpful witnesses for you would be people who have seen you interact together and have no bias. Your mother will always lie for you. Teachers, coaches, neighbors and therapists will not. 

The best way to win a custody battle is to stay out of court.  One day your child will be old enough to decide what she/he wants to do every weekend. That’s when fairness, love and compromise pay off!