The ruling in C.T. v. A.W.T. is non-precedential but instructive nonetheless.  It’s a relocation decision out of Philadelphia County involving a six-year-old child.  The single sex relationship resulting in the birth of S.T. ended in 2014.  In 2018, the parties reached an agreement giving A.W.T. primary physical and C.T. alternate weekends from Friday to Sunday and every Friday overnight to Saturday.

Seven months after the agreed custody order was entered, A.W.T. filed a proposed relocation plan to move to suburban Richmond, Virginia.  C.T. objected and filed a petition to modify the agreed order.  The facts that were developed at hearing were that A.W.T. worked at Verizon, but also assisted women in home childbirth as a doula.  According to A.W.T., to be an accredited doula in this region required a nursing license.  Virginia did not.  There was also reference to a support network, as it appeared that A.W.T. was from that part of Virginia and her employer had indicated that a transfer to Virginia would be approved.

It appears that during A.W.T.’s presentation the trial court decided to make some inquiries of its own about the motivations behind move, prompting the court to stop the testimony and hold that the proposed reasoning for the move was “invalid.”  Specifically, the court held that the primary motivation was for A.W.T. to be with her fiancée.  No other witnesses were heard and no cross-examination was undertaken before the trial court said it was moving on to C.T.’s modification request.  That portion of the hearing was confined to argument of counsel.  The trial judge did ask the parties specific questions during that argument, but neither part actually testified in connection with the counterclaim except to answer the judge’s questions.

The proceedings ended with C.T. securing custody every weekend from Friday afternoon to Monday morning except for the third weekend, which would be A.W.T.’s.  Picking up on A.W.T.’s request to split summers if relocation was granted, the trial court divided summers without approving a relocation.

No Section 5323 analysis of the custody factors was recited at the conclusion of the hearing or in the trial court Opinion.  So, you can tell there was going to be an appeal.  Basis 1: Incomplete hearing.  Basis 2: Failure to provide the Section 5323 analysis.  You can probably surmise the result.

What makes the ruling interesting is that the Superior Court finds that allegations of a due process violation triggers a plenary and de novo review.  Contrast this with the usual custody standard, which is “the broadest type,” but undertaken with an abuse of discretion standard.  The appellate court does not make independent factual determinations in the typical custody case and can reject trial court conclusions only if there is an error of law or unreasonable findings.  The Court cites S.T. v. R.W.  192 A.3d 1155, 1160 (Pa.Super. 2018).  The signal here is that the failure to permit a complete record invites an appeal based upon a more stringent standard of review.

The next segment of the Opinion is as one would expect, citing A.M.S. v. M.R.C., 70 A.3d 830,836 (Pa.S. 2013) for the proposition that these cases require an explicit analysis of the 10 relocation factors and the 16 child custody factors.

Then the Opinion bumps into what can best be termed a “procedural enigma” created by the statute.  23 Pa.C.S. 5337(g)(1) states that in relocation cases, the courts are to hold an “expedited full hearing” before the relocation occurs.  We know from the Opinion that the notice of relocation was issued in April 2019.  The hearing on all petitions was on August 20, 2019.  The words “expedited” and “full” are inherently problematic.  As we all know, relocations inevitably come with a fuse suggesting that a decision needs to be made before a new school year begins.  In this case, one of the ostensible benefits of the relocation was that the six-year-old child had professed an interest in animal husbandry and that the Virginia elementary school had a farming program.  The trial judge was not impressed with that argument, nor that “need to leave the crime ridden city” argument in favor of bucolic Virginny.

The other subject, which was explored at trial, was the licensing and employment opportunities of a doula in Pennsylvania vs. Virginia and other states (commonwealths, actually).  This was a very important topic, but how is this to be done on an expedited basis in a world where discovery is only available by court order?

The Superior Court notes that in addition to truncating the hearing, many answers to questions were also cut off by the trial judge.  The ultimate ruling on the record was “She doesn’t have to go to Virginia.”  The Court describes the trial court’s approach as haphazard.  The appeals court also explicitly holds that the classic judicial question, “Is there anything else [before I rule]?” is not a basis to argue “waiver” where the proceedings otherwise demonstrate that the question was posed not sincerely, but as a means to telegraph that the record was closing.

The Order was vacated and the case remanded.  However, because the appeal contained no explicit request for re-assignment of the case, the Court ruled it would be remanded to the same Judge they were reversing.  See Com. v. Whitmore, 912 A.2d  827, 834 (Pa. 2006).

Sunday night not only brought us the news of 1,000 deaths in New York but US officials discussing potential death numbers as high as the number killed in the US civil war.  My partner Rhonda Ores from New York posted a brief essay by the trial judge responsible for coordinating custody matters in a state with 60,000 cases. The words come from NY Supreme Court Judge Jeffrey Sunshine.

“How [parents] conduct themselves … during a time of a pandemic crisis, one of which we have never before seen, will shape their relationship with each other as divorced parents in the future, the relationship they have with their children and most importantly the relationship that their children have with them.  As adults, we are all frightened over the events of the past few weeks and the uncertainty of the future.  Through the eyes of a child, their world turned upside down—their school disrupted and social interactions with friends now almost impossible.  One of the only things that should and can bring comfort to a child are parents cooperating.  Not only is it the best interest of the child—the time-honored standard—it is the best interest in their divorce and their relationship to come.  These events will have a lasting impact.  For the last generation, it was the Great Depression and World War II; for my generation, it was the assassination of President Kennedy; for my children it was 9/11; and for the generation of children today, it is the events that now surround us. Let them have fond memories of how parents conducted themselves. If parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case.  I listen carefully and remember the children who have spoken to me during the hundreds of in-camera interviews I have done in the past 21 years.  I hope over the next few years children will be telling me how positively their parents behaved to make sure they were safe, allowed access by technology if illness or the risks of travel prevented access, and that both of their parents put their differences aside and they did it for me.”

If your clients are not listening to you and think they are not accountable for their conduct, might I suggest you send this to them.

Amen.  Stay well and show your loved ones leadership in this hour of crisis.

As this is written, the bill has not yet passed the House of Representatives, but the CARES Act probably will be law before the week’s end.  The newest federal stimulus package is renowned for the distributions it is scheduled to make to families earning less than $100,000 per year.  That topic has been much reported.  What has secured less notoriety are provisions allowing hardship withdrawals from IRAs and hardship 401(k) loans.  Again, the bill is not final and it is going to involve some regulatory gymnastics by the IRS but here is what is in the offing.

If you are “affected” by the Coronavirus either by being diagnosed with it or you have been laid off, fired or furloughed during this time, keep records of any documents confirming that.  This may even include a notice that your daycare closed requiring you to stay home.  These events may permit you to tap either your IRA for a distribution or your 401(k) for a hardship loan.  Step 1 is what you can do today, which is retain the documents that may qualify you for this special form of taxpayer relief.

An IRA distribution made flat out does little for you from a tax viewpoint.  The withdrawal is still “income” in tax year 2020 but the withdrawal is not going to be subject to the 10% penalty for those under 59.5 years of age.  The legislation also appears to allow you to avoid tax consequence if you repay the distribution or loan within three years.  That’s big and a possible lifeline for distressed families and small business holders.  The limit is $100,000, but even if it is not back in the retirement kitty in three years, the plan is to allow you to report the income over three separate tax years rather than all at once.

What makes this provision so important is that no one is yet certain just how quickly the stimulus checks/deposits will be issued.  It seems fairly certain that no states have the capacity to promptly process and pay 3 million unemployment claims.  Truth is that you may have to reach for the IRA/401(K) remedy before all the regulations are issued in order to keep food on the table or your business alive.  Obviously that does entail some risk that you will pay ordinary income rates (if you do not conform to all the rules-some probably not yet written).  Understand however that these funds are not supplementing income, but substituting for income your employer is not paying you.

One other disadvantage to this plan merits attention.  Sadly, if you take the money out now, you do so at a time when the S&P500 has fallen by 20% since New Year’s Day.  Thus, you may be able to take out only 80 cents on the dollar you put into retirement at the end of December because that’s all your dollar is worth today.  Desperate times require consideration of desperate measures and every captain’s first task is to keep the ship afloat.

“Don’t give up the ship.” Try to talk with both your tax adviser and your retirement plan manager about how best to make use of this life preserver without causing more damage to your long-term financial security.  In the meantime, stay well.

If you are watching the news today, (3/24/20) you have some impression of what New Orleans must have been like in the hours before Hurricane Katrina hit.  The Coronavirus storm is hitting New York City and the lower counties with a fury.  The numbers are rising fast throughout our region as well, although New York is clearly getting the thrust of the storm.  Last evening Pennsylvania’s governor announced that its Southeastern residents are to “shelter in place,” meaning travel should be for essential purposes only.  The Courts essentially closed for all but emergencies last Thursday afternoon and the economic and personal impact are starting to really settle in.  The State Bar Association operates an online service where many lawyers are asking some very good questions to each other based on some very good questions coming from clients.  This is a brief distillation of what’s on that “wire.”

If we are to shelter in place, does my kid stay with me in spite of the custody order?

 The consensus is “No, the custody order is an essential duty” and the schedule is to be maintained.  At least one county (Chester) has officially said that.  I hasten to add my common sense question.  Does this back and forth not risk a lot?  It now seems clear that asymptomatic people (no symptoms) are a pretty effective way of spreading this virus, and children are designed to put their hands everywhere and on everything with no awareness of the risk they create.  So, you are shipping back and forth what may appear to be a very healthy child who is carrying something that could prove deadly for you and others in your household.  In the region where I practice the bulk of proven cases are afflicting people ages 25-60.  They have good chances of recovery, but they are more and more living with people who are older and have considerable risk.  Of course you want to see your kid.  But is that in your kid’s health interest, or yours?  We are now well past the days when this virus was coming from Europe or Asia.  We are now giving it to each other and children living in two households may be a primary vector.  If the two parents can agree that fewer exchanges is healthier, just make certain that is confirmed in some written (electronic) form.

If you have a custody emergency call the Prothonotary in the county where the case is pending and ask about electronic filing.  Some courts are permitting petitions to be faxed or emailed but you are still currently going to have to follow up with a physical copy, pay the fees and arrange for service; done in a building that will be largely closed.  Barring risks of abduction (not simply “retention”) or imminent danger to the child, don’t expect to be welcomed.  We have had people asserting that children are at risk because one of their parents is working in a healthcare facility.  No doubt, that does elevate risk although the precautions taken in those facilities are substantial.  Now take a step back.  Are all healthcare workers to be quarantined from their children so that none are exposed?  Aren’t those members of our society already enduring enough for the rest of us?  We have to trust that if they love their kids, they are doing everything in their power to protect themselves if only to mitigate the risk to their kids.

I have been laid off or told to stay home.  What about my support when I’m not getting paid?

The various Pennsylvania Courts (about 70 of them not including the local magistrate courts) began issuing a myriad of orders beginning in early March.  Unlike county governments, just about all of which have Public health departments, courts don’t have anyone to give them advice about public health issues.  Courts are also supposed to be open every business day and courts also are often called upon to act in the night and on weekends.  So they are reticent to close.  Each county court tried to fashion orders shutting down some activities while leaving other matters pending; including criminal arraignments and bail hearings, protection from abuse matters, mental health emergencies and other matters of “life and liberty,” (in contrast to property).  On March 18, the Supreme Court received a letter from the State Department of Health imploring them to limit judicial activity as much as possible.  The Court acted that same day effectively closing the courts except for emergencies.  In a nutshell, aside from the usual emergencies, a family law emergency is one where a judge MUST act.  That is probably not going to include whether your payments or your child is late.

Under present law, if you lost your job or your check, you are supposed to file a petition for modification.  The laws says your order cannot be reduced for a period for which no petition is on file.  Problem today is that the office that takes those petitions is not open.  The Bar is working on a solution and we have made some administrative agencies aware of this as well. Anyone in the “system” for support knows about the PA Child Support Program.  However, at the time of this writing there is no means to file a modification petition in each county.  Some counties have sophisticated electronic filing systems and it may be possible to file from your computer.  Try your county website and its Domestic Relations Section.  Otherwise, you may want to get your pen and/or computer and prepare something to say what happened to your job and that you need a modification.  This is not a truly satisfactory answer, but realize that these are extraordinary times and all systems are being taxed while working with very small parts of their usual office support.  The Supreme Court may create a retroactive solution because obviously you cannot pay support based on money that does not actually flow in.  Nevertheless, you can still be charged for support unless and until you file to modify.  Don’t forget if you are in this pinch, courtesy and the Rules of Civil Procedure call upon you to notify the other parties affected.  We are also told that some of the more draconian enforcement procedures like bank account seizure are not being implemented at this time.  Our recommendation if you cannot file electronically in your county is to send in the modification request in the form of a petition and to send it by a means of verifiable delivery.  Some county offices are open and timestamping mail received. Others are not.  Have the comfort of proving you sent it to Domestic Relations in the county where the case is pending.

If things are starting to turn violent?

Call the police.  This is an immensely stressful time and people cooped up in the same house often do not behave their best.  Protect yourself.  Understand that leaving the house is not “abandonment,” although you should probably chat with an attorney if you intend to stay away more than a couple days.  The police and the courts are open to deal with physical abuse but realize that law enforcement is being called on to step up and do more.  That may mean you are waiting longer to see the police arrive.  Do not hesitate to step out to a car or a neighbor’s home while waiting for help to arrive.

Uncharted territory calls for uncommon civility.

This echoes some of the sentiments in my partner Aaron Weems’ blog of the other day.  Most of us lived through the 10-days that followed September 11, 2001, when the Country was attacked.  Courts closed as did many other services while we gauged just how immediate and serious the crisis was.  That one passed fairly quickly.  This one is far more insidious because the attacker may well be in our own bodies or those of the people we live with and love the most.  Tonight your child can love you as much on Skype as in person.  He or she has enough angst without a crisis fueled by mom or dad’s anxiety.  Realize that millions of Americans are plagued with the same anxieties, all of which are very real.  Your creditors are also in a jam.  They don’t have 100,000 extra people out there to repossess your car or evict you from your house, and even if they did get possession of all those cars and all those houses or apartments, there are not millions of people waiting around for your house or your vehicle.  We all need to be reasonable with each other.  As I wrote the other day, our ancestors lived with all sorts of plagues.  This is not a plague, but it is deadly serious and calls for all of us to step forward and do the right thing for our own sake and for the sake of those whom we love.

In a precedential decision issued on March 16, a panel of the Superior Court offered a helpful analysis of how plans established under the Pennsylvania Uniform Transfer to Minors Act, (PaUTMA, formerly PaUGMA) differs from accounts established under Section 529 of the Internal Revenue Code.  This is an area of importance because we are seeing clients conflate the two when they are legally different animals.  In many cases, these accounts hold assets of significant value and sometimes in quite disparate amounts.  The Opinion in Brooks v. Brooks, 2020 Pa. Super. 66 (3/16/20) offers a guide to the dos and don’ts of these accounts.

During their marriage, David and Gail Brooks funded seven PaUTMA accounts and three accounts under Section 529 intended to benefit their three children.  When they formed their marital separation agreement in 2016, they did what we commonly see, one spouse “kept” the accounts, but under a written obligation to provide semi-annual statements and to maintain them in a “fiduciary capacity.”  As often occurs, whether out of neglect or worse, the statements were not forthcoming so Gail sued her ex-husband to enforce her rights to the information.  What she learned when the statements were produced was that David has used $38,000 from one child’s 529 account to fund another child’s college educational expenses.  She filed a petition to correct that and to be substituted as the fiduciary.  Allegheny County appointed a Master to take evidence and issue a report.  That Report granted much of the relief she sought.  David filed exceptions and the supervising Judge vacated the recommendation and dismissed the petition. From that Order Gail appealed, yielding this decision.

The starting point of Judge Bowes decision is to draw the legal distinction between the two kinds of accounts.  Uniform Gift/Transfer accounts are a statutory creature of Pennsylvania law and involve an irrevocable gift, which is complete when made, but affords the appointed guardian certain powers to employ the funds for the benefit of the child during his/her minority and up to age 21.  Again, while this money can be spent for purposes benefiting the child beneficiary it is not subject to any form of claw back by the donor or reallocation to other beneficiaries.

Section 529 is quite different.  This is actually an account that remains the property of the person who established it.  The donor can claw back the money.  However, in doing so, the funds become subject to federal income taxes.  The funds can also be transferred from one designated beneficiary to another as happened in the Brooks case.  This may or may not have been the intention of the parties when they employed the word “fiduciary” in describing how David Brooks was to operate the 529 Plans.  Gail argued that the employment of that term in the property settlement agreement effectively converted the 529 plans into PaUTMA accounts.  The Superior Court found no authority for that conclusion and decided not to adopt it as law.  Specifically, the Court found that even though Section 529 of the Tax Code states that funds contributed to such an account are “treated” as irrevocable gifts for federal income tax purposes that does not make them irrevocable gifts as a matter of state law.  The Opinion references IRS Publication 970 in support of this.  Thus, David Brooks acted within his powers when he used money from a 529 account of one child to fund the college costs of another child.  The Trial Court Opinion references an explicit right to transfer 529 funds between accounts, although the express language in the marital agreement conferring that right is not quoted.

The transfer and use of 529 funds, even without express authority from the other spouse, was found to be in conformity with the property settlement agreement.  Therefore, the trial court properly dismissed the petition and the resulting Master’s recommendation.  The Superior Court noted that this appeared to be a case of first impression and that a different result might have been obtained had David been made a “trustee” of these funds rather than a “fiduciary.”

The takeaway from this case is that language matters, and that if the funds held in 529 Plan are substantial or disparate, some attention should be devoted to rights and management responsibilities beyond precatory language involving “good faith.”

Clients tend to conflate these two forms of accounts because they seem quite similar.  Counsel should also be aware that a 529 Plan could be a PaUTMA wherein the gift is irrevocable.  Last, but not least, attention should be drawn to the fact that the various investment firms that offer these plans often do so with choice of law provisions.  Thus, Californian law may govern a Bank of America 529 Plan, where a Wachovia Plan may be the creature of North Carolina law.  Rarely do the firms sponsoring these plans devote any effort to explaining that these choices of law provisions may affect how the nominal owner manages the plans.

I’m not going to refer to “it”.  I have read a hundred emails in the past few days referring to “it.”  “It” is frightening for all of us. “It” is affecting every aspect of our life. It is coming across my desk as fear for future financial security. It is also causing people to fight over custody issues where the underlying motivation is, “I need to see my kid and make sure he/she is OK.”  And I need it NOW.

Panic is our common enemy and panic comes easy when we are told to stay in our homes and close our businesses.  Even I was a bit overtaken by Governor Wolf’s decision to close all non-essential businesses effective at eight o’clock last evening.  However, once I passed the shock, I realized that the success of public health over my lifetime has conditioned us to think that we can be cured of almost anything.  Our success managing public health crises has led us to expect that we will always be safe.

When not practicing law, one of my avocations is the study of medical history.  Perhaps this is of slim or no comfort, but I ask that we pause to consider what our ancestors endured and survived.  Truth is that from Philadelphia’s earliest days until the early 20th century, our population was regularly decimated by outbreaks of more than a dozen high communicable diseases.  These diseases, including smallpox, malaria, yellow fever, typhus, typhoid, diphtheria and cholera appeared on the streets of our cities and towns on a frequent but irregular basis with devastating results. The Yellow Fever outbreak of 1793 is said to have killed more than 10% of the city’s population of 28,000.  The same mortality rate would produce 600,000 deaths in our region today.  This was at a time when the city might have had only a few dozen physicians who had any formal medical training, and that training informed them that the best way to treat a mosquito borne illness was with bloodletting and purging.  Little wonder that 10% died.

Cholera arrived from India in 1832.  Lice borne typhus attacked in 1893 and smallpox killed hundreds of returning Spanish American War veterans returning from Cuba.  Again, none of these illnesses was well understood.  Meanwhile, tuberculosis was a consistent killer year in and year out.

1918 changed it all.  Troops returning from Europe came back afflicted with influenza that may have originated at a U.S. base in Kansas.  Again, a corrupt government and a lack of attention to public health allowed the disease to go untreated.  Then the City decided to proceed with a public parade to raise bonds for the war.  200,000 Philadelphians stood in close quarters and managed to give the virus all the room it could want.  In the ensuring weeks 15,000 Philadelphians died, 5,000 in a single week.  If there was good news, the flu departed almost as fast as it came (about five months), but just as we fear today, it morphed into two additional waves elsewhere.  Before it exhausted itself in 1920, more than 50 million people died worldwide from what was then called the “Spanish flu.”  That’s right, 50 million humans on all continents except Antarctica.

On October 3, 1918, schools, theaters, churches and other public meeting places in Philadelphia were closed.  Phone operators were so sick that Bell Telephone allowed only emergent calls.  By October 12, there were 1,000 bodies awaiting burial, 500 in cold storage at a brewery.  This at a time when there was not a single intensive care unit or ventilator available in a City that was 15% more populated than it is today.

These are dangerous times, but they are small beer in relation to what our ancestors faced.  They did so in a time when medicine was still in its infancy.  The leading works of the time recommended that the “bowels be opened with calomel or saline draught” and those patients should receive 10 grains of Dover’s powder (ipecac and opium) with hot lemonade.  No modern physician would endorse such treatment for flu today.  Our access to medical knowledge and treating physicians is exponentially greater than a century ago.  Yes, we face danger, but we do so immensely better prepared than any other civilization in history.

Spain is currently in a state of lock down.  Each night its citizens are appearing on their porches and balconies and chanting the words: “Viva los medicos.” Indeed.

Last week when I began to consider  the impact the coronavirus would have on custody schedules, I was focused on people having different perspectives of how to address the outbreak relative to their children’s day-to-day lives. I imagined there would be some people who wanted to be conservative and hold the children out of school, limit their participation in extracurricular activities, and generally start the “social distancing” while other parents would feel that the preparations were an overreaction and to carry on as usual.

In that relatively short period of time, the coronavirus has created a national health crisis acknowledged by most people and certainly by our federal and state governments. This is not the classic Philadelphia reaction to a snow storm where grocery stores are picked clean before the snow – if it arrives – melts in two days.  We are in new territory where state and federal authorities are closing (by recommendation or order) schools, public places, restaurants, and other non-essential places.  Parents subject to custody orders will inevitably be challenged about how they can fulfill the terms of their orders.

From a threshold perspective, no one should willfully violate a court order. “Willful disobedience” can expose a party to contempt and sanctions. Questions will arise, however, as to whether risking contempt is preferable to exposing the parties and/or their children to the coronavirus.

Legal custody issues will undoubtedly arise as parents debate how to manage the child’s care; while an ill child also creates a physical custody problem by potentially exposing the child to more people. Though children seem to be affected the least by the virus, they may also be a conduit to spreading the virus due to the mild presentation or parents confusing it with the flu or a cold.

Other legal custody issues dealing with education may arise as schools shift to online teaching (if they are able to do so) and parents look for alternatives to educate their children while they are out of school or while the parent(s) continue to work.

No custody case is the same and there are some situations that can and should operate normally because risks of exposure to the virus remain low for that family. These situations would be where the parties are both exercising all of the recommended precautions during their non-custodial time: when they do not have the kids they are practicing social distancing, limiting their exposure to groups of people, and practicing good hygiene. In other words, practicing the same precautions they would apply when their children are in their care.

More complicated are cases involving significant travel, exposure to third party caregivers, interaction with older family members or friends, employment that raises the risk of exposure, or mixed families where, for example, step-children are passing between households. Ideally, parents would agree upon an appropriate alternative to their normal, custody schedule until the virus subsides sufficiently to allow for more routine activity.  While the routines as we knew them may not return for some time, hopefully restrictions and concerns will ease once this acute, infectious phase decreases and the measures currently implemented sufficiently “flatten the curve” of the outbreak to ensure our medical systems are not overwhelmed.

In the interim, parties need to do the best they can to communicate so that neither side is unclear as to what their concerns or expectations are during this time. If a parent cannot (or will not) exercise their custodial time, then collaboration for additional FaceTime/Skype calls, online games, or other methods for maintaining their connection to their children should be explored and considered. Both parties should exercise common sense and be reasonable in their demands on each other and the children.

Where legitimate disputes and violations of the custody order arise, it will be difficult at best to address those issues in court on an expedited basis. Those with parent coordinators may have an advantage of having these issues addressed remotely, but for most cases, breaches of the custody order will be addressed in conformity with the current procedure for that county. Though the courts may be limited at the moment, it does not mean that parties will not be held accountable for their actions and decisions pertaining to custody in the near future.

It comes in a non-precedential decision but the ruling is important nonetheless. In a panel opinion authored by Judge Daniel McCaffery and published on March 2, 2020, the Superior Court held that a decision of a Crawford County judge to allow a paternal grandmother to intervene in a child custody proceeding was not appealable as a collateral order under Pa.R.A.P. 313.

The father of two young children filed a petition for partial custody in spite of his incarceration. A temporary order was entered in June giving custody to mother. Father filed for a hearing de novo. On the same day paternal grandmother filed for partial physical custody. A hearing was set on the intervention for September with a custody trial to follow in November. On the same day the intervention hearing was held, the petition admitting grandmother to the case was granted. Mother appealed that order.

As the opinion notes it is beyond cavil that an order admitting a party to a case is not a final decision. But, mother’s appeal suggested that the order qualified as a collateral order; one where the decision was too important to defer to a final custody decision. To give some credit to mother’s argument, the custody trial she faced with a grandmom not in jail and not convicted of violent crimes was a very different trial than mom faced with incarcerated father.

But, the Superior Court called it right. In a world where children need and deserve prompt disposition of family custody disputes, suspension of a case while an appellate court weighs the right of a party to participate in the proceedings. Even with child’s fast track rules in play the case that father brought early in 2019 was deferred more than five months by this appeal. The more challenging question is whether an order denying standing is a collateral order. The denial of standing would have put a prospective party out of court. Yet, should a proceeding involving a child’s best interests be suspended for months while standing is controverted? To ask the question would seem to answer it as parents and courts have only 216 months from the birth of a child to manage the whole of a child’s minority.

M.A.M. v. K.L.M. v. T.I.C., 1579 WDA 2019. A non-precedential decision but see I.O.P. 65.37

The March 9, 2020 Wall Street Journal’s front page described marriage as a new form of “luxury good.” According to the Journal since 1980 the middle 40% of U.S. workers have seen the sharpest decline in the number of people who are married. These are households reporting income ranging from $25,000 to $125,000 per annum.

The preference of this large swath of America’s middle class is to simply live together avoiding any formal arrangement. The reasons given by those asked relates to economic uncertainty. A 2019 survey by Pew Research Center found that many of couples replied that they were not financially ready for a marriage commitment. Ironically, the interest in marriage remains unabated. The University of Michigan has tracked that statistic since 1976 and it has remained a relatively constant; 75% of high school seniors still believe they will marry. But, where marriage was seen as a reliable support to creating economic well-being 45 years ago, it seems to be regarded as perilous today.

In 1980, about 2/3rds of middle income earners were married. Today that number is closer to 50%. Curiously, the higher one looks on the economic ladder the more likely are those surveyed to be married. This is not to suggest that people are not living together. In fact, for the period 2013-2017 a national survey of family growth found that among people ages 18-44 almost 60% have tried living in a non-marital relationship. Several studies reported in the Journal suggest that a major factor restraining marriage is job insecurity on the part of young adult males. This is borne out by data from the Bureau of Labor Statistics data on civilian labor force participation rates. In 2001, a recession year, the national rate was 67%. Today despite steady economic growth and reported “full employment ” only 63.4% of American adults are either working or actively seeking employment. A leading cause for this problem may be job insecurity. In industrial towns like Decatur, Illinois manufacturing jobs have declined by 40% since 2000. The rate of marriage in that town has declined by 17%.

Another factor which appears to be in play is “divorce anxiety.” Many people in the 18-44 age range have witnessed firsthand the experience of watching their families dissolve, either as children or in their own early relationships. The stress and financial complexity of dissolving a marriage is itself considered a reason to avoid marriage. As one person interviewed put it: “I feel my needs are met” by a live in relationship without benefit of marriage.

Pennsylvania statistics appear consistent with this trend. In 1973 more than 50,000 couples “tied the knot” in the Commonwealth. That number held above 45,000 through 1985 but then steadily declined to 34,000 in 2011. Since then, there has been a rise 37,000 couples but bear in mind that beginning in 2015 the law changed to allow gay couples to marry, thereby elevating the pool of persons eligible to marry.

This is an action brought by grandparents against Westmoreland County concerning their grandchild.  The County had initiated dependency proceedings involving the grandchild based upon allegations that the biological parents were drug dependent.  The County had initially placed the child with the grandparents who were then hosting not only the grandchild but the natural parents.  When drug testing of the natural parents came back positive, the County decided to pull the placement and shift to non-kinship care.  This placement culminated in adoption by the substitute parents.

The plaintiffs filed claims under 42 U.S.C. Section 1983 asserting that the removal of the grandchild was accomplished without appropriate procedural and substantive due process rights.  Specifically, they asserted that they were proper parties excluded from the placement adjudications.

The defendants, the County and one of its employees filed to dismiss.  The assertions were that: (a) the individual defendant was not a “person” within the meaning of Section 1983; (b) the notice to the plaintiffs was adequate and did not interfere with their due process rights; and, (c) the claims had been litigated in state court and were barred by the Rooker-Feldman doctrine.

The US District Court for the Western District of Pennsylvania declined to dismiss under Rule 12 holding that an action may be brought against an individual if that person acted intentionally.  The Third Circuit has explained that, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates’ violations.”  A.M. ex rel. J.M.K. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).  The issue of whether notice and opportunity to be heard was adequate as a matter of civil rights law was fact based and not appropriate for a Rule 12 dismissal.  Finally, because the plaintiffs were explicitly excluded from the dependency proceedings by means of an in limine order, the District Court ruled that it was not possible to assert that the issue had been litigated in state court.

McGreal v. Westmoreland County, PICS, Case No. 20-0157 (W.D. Pa. Jan. 28, 2020) (memorandum)  Ranjan, U.S.D.J. (5 pages). 43 PLW 163.

For a similar procedural history See Ernst v. Children and Youth Services of Chester County, 108 F.3d 486 (3rd Cir. 1997).