Mark Ashton

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The Hollywood gossip this week revolves around an Order issued in California in the custody dispute between actors Brad Pitt and Angelina Jolie. That Order outlined a summer custody schedule for the six children while maintaining primary custody with Jolie. But the Court issued stern warning to the Mother stating that: “If the minor children remain closed down to their Father….it may result in a reduction of the time they spend with {Mother} and may result in the Court ordering primary physical custody to {Father}.

The children range in age from 9-16. These can be tempestuous times for even the best of intact families as it is when children really develop their own expressed personalities. In a divorce setting it is also common for one or more to ally with one parent and reject the other as unworthy of any respect, love or attention.

Sometimes that enmity is earned. Growing children can be quick to “judge” a parent’s conduct and expose any inconsistency.  Not all parents are exemplary characters and people are not at their best when a marriage is dissolving. But then there are instances where dislike for another parent is given a little nudge if not a firm push by the “favored” parent of the day.  It often begins at separation with the gentle suggestion that “Mommy left us.” or “Daddy likes another family better.”

Parental Alienation Syndrome is a term coined by a New York psychiatrist, Richard Gardener in the early 1980’s.  He termed it a “disorder”  manifested by a campaign to denigrate the other parent. The action can be deliberate or unconscious.  It can range from subtle hints about the other parent’s inadequacies or rise to suggestions to a child that his/her parent may have physically abused the child.

The psychological community has never embraced this condition as a disorder although that subject is much debated.  In its mildest form, the child is resistant to talk on the phone or visit with the bad parent. The child will often freely opine on the bad parent’s character or conduct.  A tip off that the views are not independently formed by the child is that the language expressed by the affected child is not typical for someone that age  (“Mommy drinks too much alcohol”) or contains conclusions that young children cannot evaluate (“Daddy passed out” in contrast to “went to sleep”).

A common method of teasing out this kind of alienation is to interview the child about what he or she likes and dislikes about the parents.  An alienated child is often hard pressed to describe any meritorious conduct on the part of the parent from whom he is alienated.  Or, the child will dismiss it with a platitude (“I know he loves me” without more). An alienating parent often is described by the same child as faultless.

Although not an accepted disorder, anyone who has been in the presence of a child who is fully alienated from a parent knows how challenging those interactions can be. Typically, the child is sullen, argumentative or silent. They will recoil from physical contact, even when it is intended to express warmth and kindness. These children often will not permit anyone to try to persuade them that all parents have merits and deficits. One parent is good, the other is not.

The remedies for this condition are limited and extreme.  Most courts will order the child into therapy to make certain that the enmity is not fact based, but once that hurdle is passed the therapist has a daunting task.  The child does not want to view the alienated parent as having merit.  And, the therapist has but 45 minutes to work on correcting the matter while the parent promoting alienation has the rest of the week to reinforce negative thoughts.  Note again that some parents don’t even appreciate the toxicity of their conduct.  When confronted with the problems associated with using phrases like “Daddy left us” a mother may respond that the phrase is not one of judgment, but of fact.  We live in an age when people think it is appropriate to be “brutally honest” even though children don’t have coping mechanisms to address the brutality.  “My father is a bad man so the judge sent him to prison.”  “My mother likes to sleep around.”  A 16 year old child is old enough to understand infidelity.  Nine year olds would assume that mom must have a job that requires overnight travel.

In the Jolie-Pitt matter, the signals are clear. This judge is quite concerned that mother is over regulating conduct with father and insisting on unrestricted phone access. That, too, is easier said than done as parents can often send very strong ques that a call needs to end or be avoided.  In this case, the Court is also signaling that unless these children are able to form a more positive relationship with Mr. Pitt, the judge may go so far as to award primary custody of the children to their father. This is the nuclear option and Courts are chary to employ it because there is always concern that (a) the alienated parent is now in exclusive control should there be something bad going on, and, (b) the child might run away permanently.

There is no easy solution and this case is further complicated by the fact that the Children will be with one parent in California and another in England.  Physical distance makes it all the more difficult to break down or at least slowly dismantle studied antipathy toward a parent.

The late Supreme Court Justice Potter Stewart is credited with saying that while obscenity could not be defined: “I know it when I see it.”  This is equally true for parental alienation. The scientific and medical communities have not accepted it because, unlike depression or bipolar disorder, it escapes definition.  But, almost any judicial person deciding custody cases will confess that they know it exists because they have heard it from the lips of parents and children.  When people separate, they want their children to like them “better”.   It is only natural.  But it is far less clear whether a child’s dislike of a parent is fact based or the product of undue influence.

It happens every day throughout the Commonwealth.  It is support contempt court and the crowd is large and anxious.

On Valentine’s Day, 2017 a contempt hearing was scheduled with the petitioner being the grandmother of two young children, and the respondent, her daughter.  The daughter was supposed to pay $108 in support and $30 on arrears.

As often occurs at these contempt hearings, a deal was struck and placed in writing.  The agreement was admitted contempt but no incarceration provided that all payments were made on a timely basis.  If that condition was breached, the contemnor would be incarcerated for six months.

Appellant then appealed from her own agreed order contending that the remedy she agreed to was not one that conformed to Pa.R.C.P. 1910.25-5(a)-(c).  Many lawyers would agree with this author that you can’t appeal an agreed order.  But, we would be wrong.  In an opinion published May 8, 2018 a panel of the Superior Court vacated the order because it did not conform to 23 Pa. C.S. 4345 and sent the case back for a new hearing.  Parties cannot agree to an illegal sentence. Com. v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)

Writing for the Court, Judge Shogan borrows from criminal law in stating that a suspended sentence is “illegal” Com. v. Joseph, 848 A. 2d 934, 941 (Pa. Super, 2004).  Contempt is not about future payments.  It is focused on the present ability to pay.  If the Respondent has it, incarceration is a remedy but it must be administered with a purge condition that the Court finds can be met.  The agreed order did not specify a purge amount and failed to outline a mechanism by which a determination could be made about the future ability to pay.  In other words, each time the keys to jail are brandished in contempt court, the court needs to assess what the Respondent can pay then; not at some unspecified later time.

The burdens in contempt shift more often than the tides.  The Petitioner has the burden to prove notice and noncompliance with the order.  Present inability to comply is a defense where the burden falls on the Respondent.  Barrett v. Barrett, 368 A>2d 616 (Pa. 1977).  But, if incarceration is the remedy, the Court must find beyond a reasonable doubt that the contemnor has the present ability to comply. Id., Muraco v. Pitulski, 368 A.2d 624 (Pa.S. 1977); Kramer v. Kelly, 401 A.2d 799 (Pa.S. 1979)

Thompson v. Thompson, 2018 Pa. Super. 122 (5/8/18)

In a published decision reported on March 15, 2018, the Superior Court has addressed what it takes, at least in a criminal setting, to tie a Facebook posting to a defendant charged with a serious crime.

Tyler Mangel and Matthew Craft were charged with assault in Erie County.  In the course of the prosecution, the Commonwealth filed to secure Facebook subscriber information.  That motion was granted and at trial, the prosecution filed a motion to introduce information obtained from Facebook, which it saw as probative of guilt.  The evidence consisted of screenshots and mobile device “chats.”

When the police officer testifying about the investigation was asked what clues found in the chats could be traced to Defendant Mangel’s Facebook account, the defense counsel objected. The Trial Judge then posed this question to the witness asking whether the officer, with a reasonable degree of certainty could testify that the Defendant published these electronic statements.  When the witness testified that the account was registered in the Defendant’s name, the Court sustained the objection on the basis that ownership of a social media account could not be equated with responsibility for all publications made on that account.  The Commonwealth appealed.

Defense counsel ably created “issues” for the prosecution.  The investigating officer did not secure an IP address for the account she was testifying about.  This would have provided background about the computer, network and location of the computer at the time of the post.

Mangel is not the first foray into this evidentiary minefield.  Instant messages and cell phone text communications were the subject of In the Interest of F.P. a minor, 878 A.2d 91,96 (Pa. Super. 2005).  In October 2011, we wrote about Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) aff’d 39 A.3d 705(Pa. 2014).  In 2016, the Third Circuit ruled that Facebook authentication required a preponderance of evidence.  United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

Judge Stevens sum up the problems of authentication as the same with all electronic media; “anybody with the right password” can become someone they are not and send messages pretending to be the account holder. The proponent of social media has the burden to corroborate the message with the alleged messenger, by either direct admission or contextual clues confirming the identity of the sender.  In support of this need for “supporting evidence” aside from mere ownership of the account, the Court referred to U.S. v. Vayner, 769 F.3d 125,131 (2nd Cir. 2014); U.S. v. Jackson 208 F.3d 633,636 (7th Cir. 2000); Griffin v. State 19 A.3d 415,423 (Md. 2011); Com. v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); and, Deering v. State, 465 S.W. 3d 668, 672 (Tex 2015).

In this case, the defendant did not admit the Facebook account was his or admit to making the posts.  The fact that the name, hometown, school district and photos posted seemed to correspond to the Defendant was insufficient.  The fact that there was another Facebook account for “Tyler Mangel” in the Defendant’s hometown only added to the certainty of keeping the electronic evidence away from the jury and showed that the police were wrong in offering that there was only one person with such an account in the Defendant’s hometown.  The timing of the postings was also missing from the record.  Moreover, there was nothing distinctive about the posts, which would suggest the “signature” of Mr. Mangel, the Defendant.

This is a criminal case and one may argue that a civil case might be decided differently.  But the Rules of Evidence governing authentication do not vary from criminal to civil, meaning that electronic evidence needs to be considered more carefully than trial lawyers might otherwise want to think.

A recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.

Core facts are:

Husband: 61

Wife: 56

Both employed in health care industry.

Husband’s net: $16,000

Wife’s net: $10,400

(60/40)

25 year marriage

Wife received support $2,200 in support since 2012.

Court awarded 55/45 split in favor of Wife.  The gross estate is $7,000,000+ pensions.

Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship.  She appealed claiming the award did not give sufficient consideration to that fact.  The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.”  It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.

It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.”  The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.

On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship.  As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained.  It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage.  Hopefully this meant the monies “misused” during the marriage but that is not the word employed.

Another issue was that of whether alimony was appropriate.  The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award.  The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay.  Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”

The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven.  The language about the merit of preparing and presenting a dissipation case must be disheartening to many.  It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense.  Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome.  We don’t know how much of the $4.4 million in dissipation claims were solidly established.  What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.

In February 2018 we wrote about a recent New York appellate case making clear that those who post information about themselves on Facebook are going to have a difficult time asserting that the posting is private and not subject to scrutiny in subsequent judicial proceedings. This is especially true where the content of the posting can be tied to the litigation. In that case, a Facebook posting was found to be discoverable in a personal injury case.

That was New York in February and the law of New York does not necessarily apply in its sister state of Pennsylvania.  But, just as the highest court in New York was grappling with Facebook postings, a trial court judge in Monroe County, Pennsylvania (think Poconos) was deciding a very similar kind of case.

Kelter v. Flanagan is a personal injury case arising out of an auto collision.  In pre-trial discovery, the defendant made a demand upon the Plaintiff to preserve and produce communications the plaintiff had on Instagram after the collision occurred.

In a deposition, the plaintiff professed not to have social media accounts.  The defendant’s counsel was instantly able to show that fact to be untrue as the attorney possessed postings published by plaintiff on a public Instagram account.  Instagram has both public and private access options.  When the defendant pressed for access to private messages, the plaintiff sought protection from that stating that she had produced all of her public access messages.  Alas, the court found that Instagram allows its customers to toggle between public and private and that one cannot use a change of account status as a defense to production of this information.

The defendant’s goal in this case is to secure evidence of activities which belie the claim of injury or mitigate the extent of it. As Judge David Williamson aptly notes, pre-trial discovery is intended to allow the parties to explore any evidence that makes the existence of a fact more or less probable.   Pa. Rule of Evidence 401.  Communication on any social media platform is a statement, and, if that statement helps a court to assess what caused an event or what impact the event had upon the person experiencing it, chances are strong that claims of privacy will yield to a judicially sponsored search for truth.

In this case, the remedy was quite broad.  The Plaintiff was directed to provide her log-in information.  Lord knows, what will be behind that door.  Under the rules of evidence only relevant facts are to be brought to the courtroom, but under this ruling the counsel for the defendant may get to see a lot of personal material the plaintiff never dreamed would be available to strangers.  Attorneys viewing these communications could themselves be liable for unnecessary publication of private information in an invasion of privacy action if they circulated embarrassing data not directly relevant to the case.  But, no doubt, rulings like this may produce some scandalous material and some testy arguments over whether embarrassing information is relevant to the action before the court.

This is a personal injury case, but the ruling, while not precedential, has merit in a family law setting as well.  So beware of what you write or post because unlike oral communication, Instagram might be forever, or just long enough to expose you.

 

New York’s highest court, the Court of Appeals ruled on February 13, 2018 that a Facebook account holder’s designation of a posting as “private” did not preclude a litigant from obtaining copies of those postings where they may be relevant to the litigation.

The ruling comes from a personal injury case where the plaintiff claimed to suffer permanent injury in an equine fall.  The plaintiff’s claims included those typically associated with loss of enjoyment of life. The defendant sought to secure plaintiff’s entire Facebook account. Plaintiff opposed production of any private posting and the intermediate appellate court agreed that privacy protection was available.  Further, appellate review was allowed.

The Court of Appeals reversed the Appellate Division, noting that its ruling would allow a party to effectively “hide” otherwise discover-able material simply by marking it as private or otherwise curating their own social media postings. It permitted the Defendant to review post accident postings in search of evidence to rebut Plaintiff’s claim to have suffered cognitive injuries and loss of life’s enjoyment caused by the accident.

The ruling was not open ended however. The trial court had ordered all pre and post accident photos to be produced without regard to privacy settings except those involving nudity or romantic encounters. It also ordered Facebook to produce records of the frequency and length of the postings so that pre and post accident activity could be compared.  The Court of Appeals upheld those limitations but added that a request for these kinds of materials needs to be reasonably calculated to yield relevant information.

Needless to say, in the world of divorce, the scope of relevancy will be considerably broader than that associated with a claim for physical injuries. But, the ruling is an important one.

Forman v. Henkin  http://caselaw.findlaw.com/ny-court-of-appeals/1889175.html

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.

2017 was a remarkable year in many ways.  In late Spring we watched one of America’s favorite entertainers tried for sexual assault.  In October, prominent producer Harvey Weinstein  was accused of sexual assault by more than a dozen women.  The list of prominent men who have fallen from grace since the Weinstein story broke on October 5 would occupy a blog site of its own.  As this is written, a story has broken that a California legislator and leader of the #MeToo movement has found herself charged with sexual harassment by two people; a former staffer and a lobbyist.

While is it always tempting to write about those who are prominent, most of us who live in relative obscurity view them as “different.”   We like to think that perhaps the victims were complicit or at least indifferent to what occurred.   A common refrain I hear, even from women, is that the victim knew what she was getting into.  Others rally to the side of the victims, plainly asserting that the mere assertion of assault is prima facie evidence that it occurred.  I try to stay away from these stories because where wealth and power enter the equation, reality can become distorted.

That is what made my view of Anderson Cooper’s interview of Jennifer Willoughby so compelling.  Willoughby was not a public figure when she summoned the police to intervene in her domestic life in June, 2010.  She was just the bride of a 32 year old Senate staffer.  On paper, Rob Porter was everything a person would want in a spouse.  Harvard.  Mormon missionary work in London.  Harvard Law.  Rhodes Scholar at Oxford just like his father, the professor at Harvard.  But, in 2010 Ms. Willoughby reports that despite his polished and highly effective work in the United States Senate, their domestic life was overtaken by fear for her physical safety.

I would commend every parent with teenage children to make them watch the CNN interview with Willoughby.  The interview can be found at Daily Beast with reference to Jennifer Willoughby.   https://www.thedailybeast.com/rob-porters-ex-wife-warns-hope-hicks-hell-abuse-you-next  As I began to watch it I did so with some lawyerly skepticism, mainly because the story was old as was the divorce of the couple.  Many divorced couples love to dish on each other while millions watch.  Jerry Springer has made that model work for almost three decades.

But Willoughby was different.  She came straight out and explicitly said she had no agenda and wished her former spouse no harm.  I was still skeptical.  Until, in a very unscripted way, she began to ponder how what occurred arose from her choice of Rob Porter as her spouse.  Unlike many victims, she was not transferring blame to herself.  Not at all.  She was exploring how a relationship that once felt so right had traveled to such a bad place.  In 35 years of practicing law on behalf of victims and perpetrators, if I had a wish for all of them, it would be the self-conferred gift of introspection.  Whether knowingly or not, we have the ability to push the emotional buttons of those whom we profess to love. On July 28 Redbook published 50 phrases that we use everyday that push those anger buttons.  On November 21, 2017 Best Life published 20 Things No Husband Wants to Hear.  Most of these phrases would not be welcomed by any partner.  Any jurist who hears domestic violence cases will tell you that it is common to hear “Your honor, he punched me for no reason.”  Only psychotic people punch other humans “for no reason.”

If there was one area in the Willoughby interview where I think she strayed too far, it was her speculation about the woman her former husband is today dating.  Every relationship is different.  Ms. Willoughby may have incited violence without her even knowing how she did it.  She may have incited violence through conduct that even outsiders would not notice.  This is no justification for any violent conduct on the part of her then husband, but, rather than identify patterns of behavior that cause that domestic violence we rush to label people as “bad” or “good”.  What I found most instructive about the Jennifer Willoughby interview was that she made clear Rob Porter was not a “bad” man; he was a man who had issues with controlling his anger.  Thirty years ago, addiction was equated with moral failure.  We know better today and this writer submits that our views of anger and the violence it causes merit the same evolution in thinking that we have witnessed with substance abuse.  People afflicted with anger management problems do not benefit from ostracism; they require help.

Again, I commend every reader to give Jennifer Willoughby 26 minutes of time by listening to her tell her story.  Of course, there are two sides to every story.  But, no matter what the truth, Ms. Willoughby’s story is one every person can learn from.

A Superior Court decision last month by Judges Lazarus, Bowes and Ott reminds divorce practitioners that there are distinctions to be drawn between the rights of intestate surviving spouses and the rights of a surviving spouse to elect “against” the will of a decedent.

We start with some old news.  When the divorce code first came into effect in 1980 the rule was that the death of a spouse had the effect of abating any divorce action which had not been concluded by a final decree.  The 2005 Amendments to the law provided that once grounds for divorce had been established, the action could proceed with the decedent’s estate substituted as a party in the action.

Thomas Scarpaci died in 2013 while a divorce action was pending.  Wife had previously filed a Protection from Abuse Claim, but had withdrawn it.  The divorce action had been pending for almost six years when Thomas died intestate.

Widow Patricia filed for letters of administration.  In 2015 she circulated documents at first indicating that the estate would be divided among the decedent’s children and filed an inheritance tax return stating this was how the estate would be divided.  But, several months later her counsel issued a revised distribution statement indicating that she would be taking her share.  This distribution schedule was also not filed. When an audit status was called, the children of the decedent asked to strike the election and deny her the right to claim an intestate share.  After briefing, the Trial Court in Allegheny County sustained both arguments.  Wife appealed.

The Superior Court first looked at the issue of forfeiture of the right to take a share of decedent’s estate under 20 Pa.C.S. 2106.  The court notes that notwithstanding the length of the divorce, grounds had not been established as consents were not filed nor had either party perfected the existence of a two-year (now one-year) separation.  Thus the statute was inapplicable.

The second ground relied upon by the trial court was that the widow’s conduct warranted denial of her right to claim because she was guilty of non-support of her husband under Section 2106(a)(1).  The Superior Court held that the burden to prove non-support was upon the heirs advancing that claim.  The Court further notes that while alive, husband never prosecuted a claim for support and that the argument that wife should have supported him notwithstanding the absence of a claim was insufficient.  The object was made orally in the context of an audit proceeding.

In this case, the court never conducted a hearing or received evidence in any other form.  Curiously, the order deciding forfeiture was reversed without any remand for hearing.  The Court did note that many required pleadings, including an explicit request to declare wife’s interest forfeited, were not filed.

2017 Pa. Super. 393 (12/13/17)   http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Reversed%20%2010335312930622742.pdf

*A NOTE REGARDING OUR BLOG OF 1/3/18: We wrote on Passarelli Trust, a reported decision holding that failure to specifically disclose all assets placed in trust was not sufficient to dismantle the trust on the basis of fraud.  Earlier this month the Court withdrew this holding and ordered the matter argued en banc.

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