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My colleague, Mark Ashton, was recently quoted in Mr. Ken Belson’s New York Times article addressing a Pittsburgh custody case grappling with whether a child should play football after having had three concussions before his 16th birthday. As Mark points out in the article, custody officers are unwilling to touch an issue such as contact sport participation because no one wants to be the one who provides the opportunity for a child to be hurt. I think another reason why custody officers are unwilling to deal with such an issue is a little more esoteric: how does one gauge whether one sport is better for a child than another?

Mark also wrote a blog post last July raising the issue of football as the new battleground for legal custody issues. Parents seem to be increasingly concerned about the injury potential of concussions suffered in football and the “time value” of football compared to other sports. Having played over ten years of football, I disagree with using the time value analysis to consider the benefits of football. Football is notoriously known as only being “played” for a sliver of time relative to the game clock. The “conditioning affect” of football cannot be measured that way and it leaves out the intangible aspects the sport develops such as leadership, perseverance, physical and mental discipline, and playing a team sport which relies on each individual to perform their role to the best of their ability every single play. It is an amazing sport. It is an evolving sport. As this Pittsburgh case shows, even for those who love the sport, it is not for everyone.

Which brings us back to the Times article and what some might consider a “war” on football. The concerns and raised awareness about concussions in children is no more an attack on the sport than seat belts are an attack on driving. This issue is fundamentally a health issue, with concussions serving as the context, but which could easily replaced by concerns about a torn ACL or broken leg. Olympic downhill skier Lindsey Vonn has an injury history (including a concussion) that would make an NFL linebacker cringe, but I suspect if skiing replaced football as the activity in question no one would be paying attention to this case.

The quantitative difficulty is that a concussion does not show up the same way a broken bone or torn ligament does on an MRI. If a doctor clears a child to play any sport or activity after they clear a concussion protocol, then seemingly the child is fit to play. There is no evidence to the contrary, nor is there evidence to predict how the next concussion will occur, if at all. Left out of the article are details about the second and third concussions. I would be curious to know whether they were from direct hits or glancing blows. This child’s first concussion was from being hit in the head with an aluminum baseball bat. I wonder whether the second and third were routine plays which might not have otherwise injured him. Concussions affect everyone differently and they can be progressive such that it takes less of an impact to be concussed than it did the previous time(s).

This situation becomes a legal custody issue because it has a direct consequence to the health of the child. The mother’s argument is that football represents a “status quo,” but the father’s counsel argued that the status quo changed once the second and third concussion occurred from football. A temporary ban on the child paying football was overturned and he played his junior year without any injury. The father is now prepared to go to trial for a final order on the issue.

From a legal standpoint, this situation highlights the difficulty of developing bright-line rules for some legal custody issues and why there is little precedential case law on some of these unique issues. This situation is so fact specific that permitting (or barring) participation in football in this case will likely be irrelevant to another case. Nevertheless, it will be interesting to see what the trial court decides and their rationale behind their decision. Though perhaps not binding on other cases, it can be instructive as to whether the court considers the sport or the injury as the critical factor.

This is not a political outlet.  So, I will confine my “political” comment to a single set of facts.  17 people killed yesterday. 32 school days so far this year.  Time Magazine reports 18 school shootings.  So a school shooting every other day.

The interviews I heard last night on television provided a haunting reminder of a conversation I had earlier that day with a colleague who treats families going through divorce.  We spoke about a common case.  The child we were discussing was enduring an acrimonious divorce.  The child is caught in the middle and is traumatized by the experience.  The therapist related to me that part of his concern was that the child we were discussing seemed to have no friends; no social connection of any substance.  The kid is in a lot of pain and his parents are so absorbed by their own suffering, they have little empathy to give.  So, the child spends hours of time alone in his home immersed in social media.

Last night I listened to coverage of the 19 year old shooter.  I heard interviews with his classmates.  The child was a loner with no identifiable friends despite efforts on his part to connect with peers directly and via social media.  Children in the high school who knew the shooter before he was expelled described him as strange and his efforts to connect with his fellow students were rejected because he was odd.  So, this child posted some very troubling things online and exercised his right under Florida laws to acquire an AR-15 automatic weapon shortly after attaining 18.  That gun fires more than 700 rounds per minute.

Last year Parkland was named Florida’s safest city.  The mayor described the community as “close knit.”  Like Columbine, Colorado, Sandy Hook, Connecticut and Nickel Mines, Pennsylvania, these are towns where mass shootings are not supposed to happen.  But, let us be plain, we are not a close knit society.  Our kids are more vulnerable to this kind of aberrant conduct than we would like to think.  If you watched the interviews with the affected children, you can tell they don’t even know what they have just lived through.  If anything, they are far too poised for people who have witnessed the death of mentors, classmates and come closer than they can consider, to being among those for whom there will never be another Valentine’s Day.

Eighty nine years ago yesterday, America learned of the brutal murder of seven men in a garage on North Clark Street in Chicago.  The killings became a part of American history.  Three months ago we watched 58 people killed and 851 wounded in Las Vegas.  Cellular phones and computers can make us more connected than we could have ever dreamed possible a generation ago.  But, we are less close knit and more disconnected than ever.  When will we realize that “connectivity” is not just a reality?  It is also a mirage.

President Trump has concluded that the nineteen year old shooter was mentally disturbed.  That should be self evident. But, a child like this lurks in just about every high school in America.  The question is, do we accept school shootings as part of the American way of life or are we going to do something to find these kids and give them help before more children die.

On August 7 of 2017, the Third Circuit Court of Appeals decided a case under the Hague Convention on the Civil Aspects of International Child Abduction.  Since we don’t see much child custody litigation in federal courts nor do we see many Hague cases, this one merits a closer look.

J[ay] Blackledge was born in the Ukraine in 2008 but is a United States citizen.  At the time this litigation was before the courts Mother, a Ukranian citizen, resided in Pittsburgh, Pennsylvania and Father, a U.S. citizen, resided in Germany.  After living in a variety of Eastern European nations, in 2011 Father secured his job in Munich, Germany and Mother became a graduate student in Pennsylvania.  The family continued to live on separate continents with the child being with Mother in Pennsylvania and Father in Germany.  Although Father indicated that the goal was reunification at some place that location was never really agreed upon.

In Summer, 2013 Jay needed surgery in Pittsburgh and Father returned to the U.S. for that event.  While here Father sought stateside employment.  He did not succeed and in August, 2013 Mother and child left for Germany based upon an understanding that she would join Father there unless a mutually beneficial opportunity arose.  This was the child’s first visit to Germany.

Having moved to Germany Mother enrolled the child in an international school and resumed her graduate program via electronic connection. By August, 2015 the marriage had soured and Mother wanted to return to Pennsylvania to complete her Ph. D.  There appears to have been agreement that a return to Pennsylvania until 2018 was the best for Jay.

The child returned to Pennsylvania, excelled at school during the 2015-16 academic year and otherwise integrated well into the community. This opinion from the Third Circuit Court of Appeals of the United States reads like a celebration of how seven year old J[ay] enjoyed everything from his love of Penguins hockey to the sylvan bliss of Frank Lloyd Wright’s masterpiece of architecture at Fallingwater.  While J[ay] was soaking up the culture and other benefits of life in Pennsylvania, his Father was writing from Germany that if he could not secure stateside employment, relocation of the family to another country might need to be considered.  Mother responded that she was not rejecting the idea but that J[ay] seemed well adjusted in Pittsburgh and that other homes might be disruptive or not consistent with what the seven year old “wanted.”  Father’s response is equally naive, suggesting that a child this young might benefit from a one year on/one year off arrangement on two different continents.  Father’s first proposal was that the next academic year be in Germany and he implied this was agreed in his pleadings.  Mother did not openly disagree with this “understanding.”  The couple seemed to clearly understand that living near each other and the child would be best.  But failing that, the proposed solutions ranged narrowly from alternating year to year or accepting Pittsburgh as the primary place of residence.

Mother filed a custody action in Allegheny County which was was granted and the Common Pleas Court held that summers and holidays would be with Father but the academic year would be in Allegheny County.  It is not clear what Father knew about that order a few days later when he proposed that J[ay] come to Germany for the summer and stay to attend school in Germany.  There is a suggestion in the Third Circuit opinion, presented without citation, that Father believed the Pennsylvania Court had no authority to make its interim order.  In early July, 2016 Father filed in the U.S. District Court asking for return of the child under the terms of the Hague Convention.  The Federal District Court held a two day trial in August.  This included an interview of the child and a variety of “best interest” witnesses.  The Trial Court concluded that Mother was the more credible witness.  It ruled against the Hague petition on August 19, 2016.  In so doing it decided that: (1) Pennsylvania was the habitual residence based upon the child’s testimony; and, (2) Mother’s retention was not wrongful.  Accordingly, Pennsylvania would continue to exercise jurisdiction.  Father’s appeal asked that he be awarded custody while proceedings take place in Germany, where he was residing.

The Circuit Court ruled that the issue of habitual residence was a mixed one of law and fact and that there are two sets of inquiries when addressing “habitual residence.” The first was shared parental intention and the second, the child’s acclimatization.  The Court noted that its role is to restore that status quo prior to any wrongful removal or retention.  The stated object is to prevent forum shopping.  Father, as Petitioner, had the burden of showing the child had been wrongfully taken or retained.  To secure relief, he had the burden to show each of these elements:

  • When the removal or retention took place
  • The child’s habitual residence immediately prior to retention/removal
  • Whether retention or removal breached petitioner’s custodial rights under the laws of The habitual residence
  • Whether the petitioner was exercising his custodial rights at time of removal or retention

Yang v. Tsui, 499 F.3d 259, 271 (3d Cir. 2007)  https://www.courtlistener.com/opinion/1362349/tsai-yi-yang-v-fu-chiang-tsui/

The Petitioner was exercising rights that he had under German law.  But, the Court decided that the hearing date was the retention date and that Pittsburgh was the habitual residence prior to that date.

The appeal challenged both the retention date and the finding of habitual residence.  Father suggested that the date was June 9, 2016 when he informed Mother he wanted J[ay] to be with him.  Mother suggested the trial date was the correct one.  The Third Circuit rejected both stating the retention date is the date beyond which the noncustodial parent no longer consents to the primary custody of the custodial parent. The retention date was deemed to be the date when Father filed his Hague action because the prior verbal exchanges between the parties were equivocal.

Hard facts do make for bad law and it would appear from the opinion of the three judge panel that little Jay’s parents never really formed a definitive plan for the child.  The purpose of a Hague Convention is to arrest the scourge of trial abduction where it is employed to secure a jurisdictional advantage.  Before Mother filed in Common Pleas the parties never committed to any form of writing that would set forth a plan for where Jay would spend the year following his sojourn to Pittsburgh.  It seems that Father hoped to find a job in the United States but, failing that, it was his “expectation” that if the family could not reunite under a single roof, he would have custody for the year following that in Pittsburgh.  It also seems that when she first left for Pittsburgh, Mother was not adverse to Jay’s return to live with Father.  But, once here, she thought less and less of sending her son back to Germany and when it finally came to decision time, she filed in Pennsylvania asserting this was the home state.  That prompted Father to remove the case to Federal Court and rely upon the Hague Convention to support his position.  Abduction is a serious word and the disagreement between these two parents scarcely merits such a strong term.  The Circuit decision notes that both Germany and the United States could claim status as this child’s habitual residence.  So, there would have been justification for the District Court to have abstained from this conflict, although that may have necessitated a look at German laws regulating custody jurisdiction.

As noted above, what is lamentable about the federal opinions and procedures on display in Blackledge is the unflinching chauvinism displayed by the presiding jurists.  The goal of the Hague and its federal analogue, the Parental Kidnapping Prevention Act “PKPA”, is to insure that local courts do not engage in “we are better” analyses in deciding custody jurisdiction.  Federal courts are supposed to leave family law matters to state courts.  PKPA and the Hague are there so that when state courts start to “homer” for the local parent, there is a forum intended to protect the parent who lives far away.

In Blackledge, the District Court conducted a two day trial. That, alone is no offense because issues of wrongful retention and habitual residence are certainly fact specific.  But when the evidence adduced includes teachers, coaches, neighbors and interview of the child, one questions whether the District Court had chosen to function as a best interests court instead as a jurisdictional court.  The Third Circuit discusses J.B.’s many friends, sleepovers and other outings as if these could not occur or in some way be equaled by residents of Germany.  J.B. “bonded” with Pittsburghers at dinners, attending university events and theater festivals. His coach opined as the quality of his breast stroke while swimming and his interest in diving.  All of us know just how much eight year olds enjoy dinner parties, theater festivals and “university events.”  The opinion also reminds us of the merits of Fallingwater and the Four Carnegie Museums.  You won’t find much said about the 36 museums, 61 theaters and four orchestras that are located in Munich.  Father had since moved on to Berlin, another city that could shame any cultural resources found in Pennsylvania.

The Hague Convention is testing habitual residence, not evaluating the cultural, economic or social merits of a community.  Had J.B.’s parents been living in Ghana before he moved with his Mother to Pittsburgh, the Convention would seem to imply that a child can be just as “habituated” to rural African villages that lack swimming coaches or a robotics club.

The Hague and PKPA are about an exercise to assure fairness and not an invitation for displays of chauvinism.  The Federal Courts missed that point.  The record was sufficient once it established that Jay lived in Pittsburgh and participated in local activities typical of a Pittsburgh resident during the time he was here.  Those are the jurisdictional facts.  To wax on about his excellent grades and the great fun he had visiting a local mattress factory denigrates what the Hague is about.  Once we ascertain that there was no wrongful retention, the question does not graduate to the merits of the residence but the reality of that residence.  Federal courts do not belong in the merits of a custody case and should not devote time to extolling the virtues of the Pittsburgh life, no matter how grand it may be.

Blackledge v. Blackledge, 16-3667 US. Third Circuit Court of Appeals (Aug. 3, 2017)  http://caselaw.findlaw.com/us-3rd-circuit/1869777.html

The September 7 issue of TIME Magazine features our obsession with childhood sports.  The statistics tell the story.  In 2005, school age children played sports at a combined cost of about $8 billion per annum.  Today that number is about $15 billion, almost double. And, during this same period there was no increase in the population of American children.  About 73 million, then and now.  So, how about household income over the same period?  Nominally, it went from an average of $45,000 to $50,000, but if you adjust for inflation, it actually declined a little bit.

This writer’s conclusion?  Americans are spending money they don’t have on something they want and enjoy but do not need.  The cost of team sports for children is itself frightening.  Time reports these as average costs including enrollment, uniforms and lots of travel:

Lacrosse                $8,000

Ice Hockey            $7,000

Baseball/Softball  $4,000

Football                 $2,700

Soccer                    $1,500

Basketball              $1,150

This is not a sport economics blog but we see this every day in our divorce practices.  Parents fight over the logistics of these sport activities. They fight over who will pay.  They fight over whether the child belongs in the sport and, as we recently noted, whether the risk of injury exceeds the benefit.

As the cost of college rises, we also see many parents eyeing their children’s athletic skills as something they can capitalize upon in the form of athletic scholarships.  Putting money in a 529 plan is a tedious way to prepare for college.  But travel with the child’s team to Baltimore or Richmond to watch 72 hours of continuous soccer is now viewed as an “investment.”  Curiously, as time has passed, emphasis is now focusing on athletic performance at younger ages.  Time reports of colleges following “star” athletes at ages as young as 10.  Middle school is now where the talent is first evaluated.  This means, the sport and the child must be nurtured for seven years before the scholarship is awarded.  And, children are seeing repetitive motion injuries crop up more frequently because many of these sports are now scheduled “year round.”  A gifted basketball player cannot afford to risk his future by playing another sport where he could be injured, or worse-yet, his shooting and passing skills are allowed to wither.

In May, I testified before the Pennsylvania House of Representatives about some possible changes in support guidelines.  The witness before me was a Father who, together with his wife, invested heavily in a child’s future as a competitive snowboarder.  Much of this investment was borrowed using husband’s credit cards.  Shortly after it became clear that son’s snowboarding career did not have much promise, wife departed leaving husband with massive credit obligations.  Then she had the temerity to sue him for support.  He wanted relief from the support guidelines because a lot of his income was paying credit card debt associated with promoting their child’s sport.

I must confess, I did not have much sympathy for either parent.  But, as the Time article observes, modern day parents have difficulty saying “no” to their need driven kids.  What child would not want to go to Baltimore, stay in a hotel and hang with his friends while assembled to play back to back softball games on gorgeous college campuses?  Unfortunately, the psychological community is warning that in addition to premature serious sports injuries, many children and their families are starting to experience competitive sports burnout. Especially where scholarships are involved, many competitions and tournaments are mandatory because that’s where the college coaches and scouts are going to be found.  I spoke recently with a fellow lawyer whose child is still reeling from seeing that her son finished both college and his baseball driven career with nowhere to go.  His persona and all of his goals were erected around his athletic talent and now that talent no longer had value.

This is a bad cycle and one that often robs the children of their physical and emotional well-being while robbing their parents’ purse with little chance of return.  Each year about 400-500,000 high school kids play baseball, soccer and basketball.  Another 1.1 million play football.  The likelihood they will take this skill to the professional world is frighteningly small.  Baseball: 1 in 760; Football: 1 in 600; Soccer: 1 in 800; and, basketball: 1 in 1,860.  Sports have much merit. But all good things must come in moderation.

In most cases, there isn’t much to write on the subject of legal custody. In Pennsylvania, it is the right to make decisions affecting the child’s welfare; in contrast to physical custody which is where kids spend their time. It rarely comes up except when couples fight over school placements or foreign travel to “unsafe” places. Under a long-standing Pennsylvania Supreme Court decision, Zummo v. Zummo, courts stay out  of questions concerning religious worship unless the worship involves venomous snakes or other scary things.

But, things are changing. Beginning in 2000 scientific literature began to question the effects of concussions on the human brain. Five years later a physician performed an autopsy of the brain of former Pittsburgh center Mike Webster and asserted that the contact he experienced caused his brain to atrophy at an alarming rate.

In November 2015, 60 Minutes presented its analysis of the magnitude of the problem. This was a kind of watershed moment because parents began appearing in custody courts questioning whether sports with a propensity to cause injury were in the children’s’ best interests. This presented a true dilemma. In almost all instances, the children want to play. Football is iconic. How could the courts rule against children and football? To do so was un-American.

A new page has turned. This week the Journal of the American Medical Association published a study of more than 200 brains belonging to deceased football players. These included players whose careers ended in high school and college. The results were fairly stunning. 110 of 111 former NFL players were found to have evidence of Chronic Traumatic Encephalopathy (CTE). 90% of those who played football in college were also found to have CTE. And, even 21% of students who played only in high school were found to have been damaged.

This follows a 2011 study by the Center for Disease Control that elementary and high school football players had a 60% increased risk of suffering a traumatic brain injury.

The researchers in the current study note that their sample consisted of people who were both deceased and for whom there was evidence that playing high contact sports had caused some form of brain injury. So one cannot reasonably assert that 21% of high school football players will suffer CTE.

Nevertheless, that is little consolation for parents. Especially when one considers the actual amount of physical “play” in these modern sports. Data on this subject comes from professional sports and may not precisely correlate to what goes on at the local high school but if you are perceiving sports for the quality of the physical experience, here is what we can report.

Actual time of play          

Baseball               17 minutes

Football               11 minutes

Soccer                  57 minutes

Basketball            48 minutes

Hockey               60 minutes

Some judicial officers have responded that this is not a legal custody question. I cannot fault that reasoning but the Boston University study published this week may tip the ball in another direction.

 

While Alex Jones was the most recent high-profile example of a controversial public persona creating very personal and private problems, he is certainly not alone. Similar in theme, but not in execution is the case of the Michael and Heather Martin who are described as “YouTube stars” and post to a channel with over 760,000 subscribers.

Their shtick is to torment their five children (three together; two are Michael’s kids from another relationship) by, “verbally [berating them], frequently to the point of tears, while performing stunts like appearing to destroy an Xbox video game system and accusing the children of making messes they had not made.” However, one of the aspects of fame is that when the number of people watching you increases, so to does the likelihood that someone may not share your idea of “fun” and, instead, question whether you are actually physically and emotionally abusing your children.  Such is the situation the Martins find themselves.

Recently, the Martins lost custody of Michael’s oldest two children after their biological mother petitioned in Fredrick County, Maryland for an emergency order for custody. Undoubtedly, the apparently 300 plus videos (since removed) they posted to their channel will be used in some form or fashion in a future custody case(s).

Not unlike the Alex Jones situation, the Martins refer to themselves as being “characters,” the videos are entertainment and scripted, and that the children were often in on the pranks and interested in how many hits the videos receive. Maybe the entire family fell into the wormhole of internet fame and the kids equated the validation of a popular video as the quid pro quo for being emotionally manipulated, screamed at, and exposed to violent situations.

Regardless of the motivations, it is indisputable that the videos are valuable evidence. They either depict physical and emotionally abuse by the parents, or they record a pair of amateur entertainers whose actors (their children) perform under unsafe working conditions and seemingly without the benefit of knowing what is real and what is “part of the show.”

The parents admit in their apology video to being seduced by the fame and upping the shock value for the sake of more attention and, presumably, financial benefit. They certainly imply that the success of the stunts lead to significant financial gain and their hiring of a reputable family law attorney and crisis management public relations firm certainly seems to corroborate that.

The Martins said that having “stepped away” from their “characters,” they now understand the criticism directed at them and that they made some bad decisions and let things get out of control. People lose their kids over one or two bad decisions. Imagine if someone publicly displayed hundreds of such examples.

This is the reality of today’s social media and non-traditional entertainment platforms. Essentially, anyone can produce and disseminate media on multiple platforms instead of the old system of television, radio, and movies. The line between actor or character and who you are in “real life” gets blurred. And as the Martin and Jones cases demonstrate, the more “authentic” you try to be for entertainment purposes, the more difficult it can be to separate yourself from the actions of your “character.”

Child custody cases turn on the court’s determination of the child’s best interests.  As defined in Pennsylvania, this means having the judge apply evidence to Pennsylvania’s sixteen (16) custody factors and render a decision.  Evidence for a trial can come in a variety of ways and, with increasing frequency, the role of social media and public statements are among them.  Periodically, a case involving a public figure forces the courts to consider when an individual’s “public persona” or public statements are germane to the underlying family law issue.

In the case of Austin, Texas based “Infowars” radio host Alex Jones, his public persona and commentary are being relied upon by his ex-wife, Kelly Jones, to justify her pursuit of sole or joint custody of their three children.  The children have resided with Mr. Jones since the couple’s 2015 divorce.  Ms. Jones cites statements Mr. Jones has made on Infowars and a variety of associated public behavior, as well as some of the associated backlash to those comments and actions to demonstrate his unfitness as a parent. Based on published news reports, Ms. Jones claims that Mr. Jones’ home, which also serves as his broadcast studio, is inherently unsafe due to the attention his public persona draws and that the statements made by Mr. Jones demonstrate mental and emotional instability which demand the removal of the children from his care.

Mr. Jones’s counsel, in response, is arguing that his “persona” is akin to being an actor. He is playing a role that caters to a particular audience.  Consequently, you cannot hold his employment against him any more than you would an actor who portrays a particularly violent or controversial character. His lawyer makes the (dated) analogy that to use Mr. Jones on-air persona as evidence towards fitness as a parent would be like assuming Jack Nicholson’s performance as the Joker. This is a troublesome analogy, however, since no one would confuse “Batman” for a documentary about a wealthy man’s obsession with bats and the clown that hates him. There is a clear delineation between the actor and the character; reality and fiction.

Contrast that to another radio performer like Howard Stern.  Unlike Stern, there does not appear to have been any “fourth walls” broken in Mr. Jones’ radio or public performances.  Throughout Stern’s career, he frequently references the dichotomy between his on-air persona and his real life. He even produced a book and movie (“Private Parts”) showing this disconnect between his two worlds. Mr. Jones, on the other hand, does not appear to have ever revealed another side of himself besides the “Alex Jones of Infowars.” In fact, his ex-wife argues that they are one-in-the-same and argues that Mr. Jones is “not a stable person” who makes threats of physical violence towards celebrities and politicians.

Aside from trying to show an instability of the mind or lifestyle, are Mr. Jones on-air statements relevant evidence in a custody trial? As the trial heads into its third day, it appears that despite his defense on the grounds of art, they likely are. Another high profile case which used public statements to the detriment of the party was the Sherri Shepherd parentage case.  Ms. Shepherd and her ex-husband had a child by egg donation and gestational carrier. Leading up to the child’s birth, Ms. Shepherd was publically vocal in her excitement and anticipation of being a mother up until she and her ex-husband separated and eventually divorced. She lost her attempt at the trial level (a decision affirmed by the Pennsylvania Supreme Court) to invalid the gestational carrier contract and be removed as the child’s legal mother. At trial in the Montgomery County Orphan’s Court, her ex-husband presented a compelling montage of Shepherd’s public statements.

Mr. Jones’ commentary is certainly protected political speech, but whether Mr. Jones has the right to that speech is a separate issue as to whether his actions and behavior – of which his public statements are a significant part – make for a stable living environment or one which serves the children’s best interests.  Ultimately, the jury will parse out the “real” Alex Jones from his in-court demeanor, direct testimony, video and audio clips.

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

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

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

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

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

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

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

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

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

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

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

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

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

This week we see a new case from a trial court on Long Island, which held that folks who adopt an open marriage that produces children might find the custody courtroom doors open when parts of the relationship have closed.

Follow along carefully. It is a bit more “complicated” than you might expect. Dawn and Michael Marano are married in 1994. In 2001, they form an intimate relationship with a neighbor Audria Garcia. The Michael/Audria relationship (yes, the extramarital one) yields a child in 2007. It appears that back in 2007 there was a common agreement among the three partners that they would raise the child together.

You can predict what happens next. Dawn files for divorce and seeks custodial rights to the child. Michael responds she has no rights because she is not a biological parent. Meanwhile, Michael and Audria are not getting along either. The Trial Court, looking at a growing body of precedent coming from the gay community where it is fairly common for one “parent” to lack a biological nexus to the child, decided that natural mother would have primary custody. Father would have weekends and Father’s wife would have weekly dinners and some summer vacation. The Court found that the child did have a relationship with all three adult parties.

The press coverage of this decision has been extensive. New York Magazine, Glamour, Cosmopolitan, Slate. The women are content with the ruling. Father professes that he will appeal. One can only imagine the trauma to a ten-year-old child innocently caught in this maelstrom of parental conflict and swirling publicity. On the adult side there appears to have been a “contract” whether written or not to raise the child communally. But suppose Michael and Audria expelled Dawn from the compact and admitted another man or woman as a substitute? If that subsequent relationship disintegrated, does the most recent exile from the “pact” have standing to request custody time as well? Is there a limit to how many contestants a custody dispute can have? And so long as I am asking questions; is there a time when the confusion associated with this litigation can be deemed to outweigh the merits of fostering and then judicially monitoring multiple relationships surrounding the same child? This may be the rantings of a curmudgeon. But thirty years ago, the mere existence of one extramarital relationship could cost a parent dearly in terms of custodial rights. And while the current crop of rulings on who can seek an award of physical time with a child seem to portend greater expansion of parental rights, I wonder whether children will ultimately pay the price emotionally because the greater the number of constituent parents, the greater the opportunity for conflict that undermines stability in a child’s life.

Some might argue: “We can just ask the child…” That is true but 10 year olds are not very adept at evaluating conflict. Moreover, they do not like to say no to anyone offering love and affection. One of the principles deemed most important in determining whether to award joint custody is the ability to cooperate. This author suggests that there should be a heavy presumption that two parents are enough and that if there is a strong sense that a third parent can and will cooperate to promote stability only then should a door be opened to admit a third party. Dawn might well be the best parent of the three but Michael and Audria enter the custody ring with constitutional rights. Those rights were judicially recognized long before Dawn stood back while her husband and another woman conceived and gave birth to a child. Yes, there are cultures including Native American ones where children were considered the property of the village and not the parents. But American culture is not wired that way and childhood is confusing enough without having three or more contestants battling out your best interests while you sit in the back of the courtroom wondering what a person dressed in a robe will decide is best for you.

Dawn M. v. Michael M., 00109/2011, N.Y. Supreme (Suffolk County)

Last Fall brought us a decision from the Supreme Court of Pennsylvania holding that a grandparent did not have standing to terminate a Father’s parental rights incident to an adoption. Last week brought us a Superior Court case in which the appeal comes from a Mother and her own Father in a custody case involving a 12-year-old child.

Mother had a girlfriend. To show the seriousness of their commitment, Mother and Girlfriend decided they would adopt each other’s children. The family remained intact for 13 years until April, 2011. A few months after the split, Girlfriend filed to obtain sole legal and physical custody of her natural child (a son) and primary physical custody of Mother’s child, a daughter. Mother counterclaimed for primary custody of both children.

After some initial skirmishes in the Montgomery County courts, a consent order was formed in August, 2012. Each parent would keep primary custody of her natural child. Problems began to arise between Mother and her adopted son and a parent coordinator was appointed who thought psychiatric and psychological support was necessary. In addition, a custody evaluation was ordered at the instigation of the parent coordinator.

Matters boiled over and on May 27, 2013, Mother shot Girlfriend in the presence of both minor children. Mother was charged with attempted homicide and endangering the welfare of the children. She was sentenced to a lengthy prison term exceeding 20 years. Mother was prohibited from communicating with her adopted son and from discussing the incident with her own natural child. Mother’s assertion to this day is that she acted in self-defense.

Once the shooting took place, Girlfriend (who had been shot by Mother) filed an abuse action and emergency custody petition. Mother’s own Father (Grandfather) filed a petition to intervene, requesting that he have custody of his granddaughter, the natural child of Mother. His allegation was that Girlfriend was tolerating physical abuse of the 11-year-old girl by her adoptive brother. Girlfriend, having recovered from the gunshot, asserted that the allegations were false and that Grandfather had no standing. Grandfather amended his petition in the wake of the objections to allege other incidents of abuse and to assert a right to custody under 23 Pa.C.S. 5325(2). Ironically, that ground as a basis for custody was declared unconstitutional by the Supreme Court while this appeal was pending. See. D.P. v. G.J.P. 146 A.3d 204 (Pa. 2016). The Superior Court notes that Girlfriend did not preserve the standing issue at trial so that it could not be asserted on this appeal. Judge Strassburger dissents on the standing issue but let’s keep our story on track.

Eight days after the shooting, the Trial Court entered an Order granting custody of the daughter to the Grandfather. (Mother’s father). A local attorney was appointed as child advocate and it was ordered that only the advocate could discuss the incident where the girl witnessed his natural mother shoot her adoptive parent.

A two-day custody trial followed. As the Superior Court notes, Grandfather needed to show an unaddressed risk of harm to have standing under 23 Pa.C.S. 5324. The Trial Court concluded that the risk was not sufficient to afford Grandfather the standing to seek custody he had filed to obtain. Accordingly, it granted the Girlfriend’s preliminary objection and therefore, concluded that the best interest analysis set forth in 23 Pa.C.S. 5328(a) was superfluous.

While all of this was awaiting trial, there was no interim custody order. The Trial Court instructed the attorneys and the child advocate to craft some form of physical contact. After two visits totaling 36 hours, the child advocate suspended Grandfather’s access because her directives were not being followed. Shortly after this occurred Girlfriend filed for sole legal and physical custody of both children. Another hearing was held, and in October, 2014 (17 months after the shooting) Girlfriend was awarded sole physical custody of both children. Mother was to have legal custody on a “cause shown” basis if she disagreed with Girlfriend’s legal decisions. All communication between Mother and daughter were to be reviewed and edited by the child advocate.

Grandfather did not appeal but filed another petition to modify which appears to complain about his absence of access. He was afforded another hearing where he expressed concern that the son was physically dangerous to the daughter in Girlfriend’s care. Mother also filed a request for phone contact with her daughter from prison. In August 2015, both requests were denied following another hearing. Postal contact was permitted by Mother subject to control by the child advocate.

Mother and Grandfather appealed. Mother asserted there were constitutional issues at stake as she had a fundamental right to parent. While the Superior Court found her constitutional argument to be fragmented, it did find that Mother’s claims of innocence in the shooting incident should not, alone, prevent contact between parent and child. The standard found in the statute is one of whether there is a “threat” from contact. 23 Pa.C.S. 5329(a) and (d). The Superior Court found that the Trial Court had not devoted enough energy to analysis of what it terms “prison visits” under Etter v.Rose 684 A.2d 1092,1093 (Pa.Super. 1996) and D.R.C. v. J.A.Z., 31 A.3d 677 (Pa. 2011).

A second source of controversy was the level of authority afforded the child advocate. The Appellate Court characterized the advocates regulation of contact between Mother and daughter as “overreach[ing]” and “micromanaged.” The Court concludes that this level of delegation, including the management of all communication between parent and child as improper. The Court notes that the title of “advocate” is not defined and cannot be equated with that of guardian ad litem. The term advocate is found in 42 Pa.C.S. 5983 and relates to involvement of children in the criminal law system as either victims or material witnesses. The advocate is described by the opinion as a holistic approach in contrast to the specific missions of guardian ad litem under 23 Pa.C.S. 5334 or attorney for the child under 23 Pa.C.S. 5335. The Court notes that from the record it appeared that the advocate acted at times as legal counsel and, at other times more akin to guardian ad litem. She appeared as both counsel and witness in these proceedings and was cross examined while testifying. The Supreme Court had decided in an order issued in September, 2013 that the guardian ad litem statute would be suspended to the extent that it required the G.A.L. to be an attorney or permitted “best” interests analysis to be conflated with “legal interests” or permitted the G.A.L. to present witnesses and participate in the trial in any role other than as a witness. The message this rule seemed to telegraph was that if you want to participate in a trial as a lawyer, you proceed under Section 5335. Section 5334 means you will sit, listen to the trial and take the stand to express what you consider to be the best interests of your subject child. On remand, the Trial Court was directed to carefully craft its order defining the scope of the attorney-advocates role.

As for the appeal of Grandfather, it shared many of the waiver problems found in Mother’s appeal. Both were presented pro se and the Court opined that the Pa.R.A.P. 1925(b) statements were not well articulated.

Here the reasoning gets somewhat muddled. Bear in mind that the majority has affirmed the Trial Court ruling that Grandfather did not attain the standard of showing that the children lacked sufficient parental authority and control. So it was motoring under the partial custody standard and doing so because Girlfriend had not asserted lack of standing to seek partial custody in response to Grandfather’s filing. The Trial Court denied partial custody because his desire to have contact with his granddaughter was not in the child’s interest because of Grandfather’s (a) animosity toward Girlfriend (b) his steadfast belief that his daughter was not guilty of a crime when she shot Girlfriend and (c) his efforts to control his granddaughter’s testimony. The Trial Court also felt that Grandfather was inclined to try to sow discontent between Girlfriend and the eleven-year-old daughter (by adoption). The Superior Court finds that there was scant evidence to support these conclusions and while it defers to Trial Courts in these types of analysis, the analysis must be borne of evidence presented rather than supposition. It also held that under Section 5328(c)(1)(iii) the Trial Court must perform the 16 factor analysis that has become a part of all custody determinations.

Specifically, while condemning Grandfather’s use of the term “Adoptive Mother” in the case, the Court did not find this so egregious as to merit suspension of contact. The Court found no record that Grandfather had attempted to discuss or persuade his granddaughter to take a side in the criminal proceeding against her natural mother. This was ascribed to a “supposition” on the part of the child advocate rather than any evidence of record. The Grandfather had attempted to arrange for the child to meet with Mother’s criminal counsel for purposes of an interview but that interview was blocked by a subsequent court order.

In the end, the appellate court expresses concern that Girlfriend is not exercising sufficient control over her son to the possible risk of her daughter. The Superior Court described some of the incidents and believed the conduct between the sibling children involved more than innocent horseplay. Thus, it reversed not only to have a full evaluation of Mother’s rights while incarcerated but Grandfather’s rights under Section 5328(a). This makes for an interesting rehearing, as the law of standing is different than it was at the last hearing.

For better or for worse, this is what “new age” custody proceedings are going to entail; an unmarried couple, who adopt and then split badly, even violently. The children involved present their own issues related to physical conflict. A grandfather tries to intervene and an advocate is criticized both for the nature of her role and for overzealousness in the protection of an 11 year old child. Bear in mind, the circumstance of an adoption is the only thing that bars to two natural fathers from appearing on the scene to add to the mele. Note as well that this action began in November, 2011. It was temporarily settled in August, 2012 but within eight months gunfire erupted, setting in motion a piece of litigation that has subsisted for more than 3.5 years and is headed back to trial. The one child affected is described as “now 12”. That would mean that she was perhaps 7 when her world fell apart.

Note Bene:   We have been longstanding critics of the business of identifying custody litigants and children by initials. The author has been told this is a losing battle. But this opinion, for those willing to endure its 45 page analysis, was a special form of suffering. For 45 pages, here is what one read:

M.G. v. L.D.; Appeal of C.B.D. 2017 Pa. Super 29 (2/8/2017)

L.D.   Mother of M.G.D.. Adoptive parent of E.G.D.

M.G.  Mother of E.G.D. Adoptive parent of M.G.D.

C.B.D. Father of L.D.; Grandfather to E.G.D. and (by adoption) E.G.D.

As I have explained plaintively to any appellate judge who grants me audience, the children in this case are the soldiers in the trenches of modern day custody wars. They are gassed with parental acrimony nearly every day. They don’t read the Atlantic Reporter and their friends don’t either. In this case, two children have lived a life of newspaper headlines and criminal trials culminating in a long-term prison sentence. The least of their concerns is whether their identity is revealed in appellate paper books and resulting opinions. Meanwhile, if called upon to explain the precedential effect of this reported case in a pending case, this lawyer would be required to emit enough letters to daze even a lifetime “bingo addict.” The addict at least has a chance at a prize.