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Pennsylvania uses the standard “the best interests of the child” when determining custody issues. What happens if the best interest of the child breaks the law? Such is the case in Georgia where parents of a 15 year old boy suffering from epilepsy resorted to marijuana to treat his seizures. Their argument is compelling: their son suffers from debilitating seizures that have not responded to traditional treatment and medical help is forty-five minutes away from them. They feared his seizures would eventually kill him.

Having seemingly exhausted their medical options (including a legal form of marijuana oil in a capsule), they began having their son smoke marijuana. His seizures stopped. However, the state of Georgia’s child welfare agency, acting on a tip, investigated the family and removed the young man from his parents’ care in April. Having gone nearly 70 days without a seizure, on the day he was removed from his home he was hospitalized for a severe seizure. He is in a group home and reports did not mention whether he continued to have seizures, but presumably he has and those facts will emerge later this month when a hearing is held.

Pennsylvania passed medical marijuana legislation in 2016, including provisions that address the use by minors as administrated by designated caregivers. That said, marijuana is still a Schedule I drug under the Controlled Substances Act with state and federal criminal ramifications. The Georgia case highlights a possibility that still exists in Pennsylvania where conflicting state and federal laws can result in criminal charges.

How would the court react to the “legal use” of marijuana by a custodial parent or an objection by a parent to the use by a minor child? Pennsylvania updated their Health and Safety Statute (§10231.2013) to include a prohibition against including medical marijuana as a consideration in a custody proceeding, but nothing was done to amend the custody code to make a similar restriction under the custody factors.

Most likely, the courts of Pennsylvania will continue to apply the custody factors to medical marijuana in a manner comparable to prescribed pain medication with an emphasis as to whether it is being abused or affecting the custodial parent’s ability to care for the child. The use by a child would be dictated by legal custody considerations and medical necessity not unlike any other treatment. Despite evolving laws in this area, there will continue to be a tension between state application and federal law. While that may not change any time soon, addressing those disparities at the state level should improve as time passes.

More information on cannabis, especially the business side, can be found at Fox Rothschild’s blog “In the Weeds.”

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.

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.

 

There are times when two conversations with two wholly separate individuals causes a person to distill some interesting new thoughts. Earlier this month I had lunch with a woman who has long run the intake program for the Domestic Relations Office in Chester County. We were discussing the triumphs and tragedies associated with the daily business of processing support cases where both emotions and money are at stake. My lunch companion, Rae Morgan, observed that one of the real problems they encounter is that because the litigants are so nervous about going to court over support they lose their ability to listen and appropriately process even simple instructions.

Two weeks later my lunch companion was Judge Daniel Clifford from Montgomery County. Dan is new to the judging business but a long time divorce practitioner before he was elected to the bench in January of this year. He has been hearing a lot of custody cases and we spent some time discussing how his perspective has changed as he transitioned from before the bench to behind it. His comments echoed those of Rae Morgan. Namely, that he wishes that litigants could observe their own testimony because in many instances what they were advocating was really not consistent with a child’s best interest. Put another way, their anxiety about the hearing often deprived them of what might otherwise seem common sense.

In both instances we spoke about how lawyers can try to help people understand how the judicial process works and how they could be less reactive to it. But then today my inbox brought me an article from Popsugar captioned “30 Things that Children of Divorce Wish Their Parents Knew” I commend every parent to take a few minutes to look at this because a great deal of it would address the kinds of concerns Judge Clifford was talking about in a custody setting. I will edit what I saw as editors tend to do. Their 30 became my 15.

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”
  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.
  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.
  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.
  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.
  6. It really, really hurts when you don’t show up for something we have scheduled.
  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”
  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.
  9. I am not staying with you to provide information about what the other parent is doing.
  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.
  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.
  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.
  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.
  14. If there is bad news, please don’t ask me to be the courier.
  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

Last week Newsweek published its annual rankings of America’s Top High Schools.  This is a much awaited publication for those with children of that age and it is undoubtedly well circulated in the admissions offices of our colleges and universities.

These compilations also commonly hit the family lawyer’s desk whenever there is a hot dispute over primary custody or relocation. In reading the recent history of relocation cases, the decided focus of Superior Court cases is on the matter of how the relocation benefits the child and in many instances we are given these rating compilations by custody litigants who want to show that a new school would be “better” for the child or the present placement is “fine.”

Many judges and hearing officers deciding these cases will admit these magazines “for what their worth.” Technically, there are myriad evidentiary problems with any “ranking.”  The content of the magazine is itself hearsay.  The person making the statement that “Quaker Valley is the 271st best high school in the nation.” is not a named person at all.  It is a magazine.  So we don’t know the identity of the person who decided that Quaker Valley was No. 271 while Penncrest was No. 276.  We also don’t know the specifics of how this was decided.  The article will tell you about general parameters employed such as college matriculation and graduation rates and average SAT scores.  But the typical editors who do the ranking don’t tell us how these metrics are weighted or whether a planetarium is a plus while a ceramics kiln is neutral.  Lawyers who stand up and object to the admission of these rankings have excellent reasons why the objection should be sustained and most law school professors would harshly grade any student of Evidence who would admit “speculative hearsay compiled without ascertainable scientific foundation.”  Of course you could subpoena the editors of Newsweek to explain all of this but, alas, they rarely come to court.

What really happens? Most judges this author has seen will admit the document over objection noting that the actual “value” of this as evidence is not easily ascertained.  I suspect they then lug the magazine back into chambers and scan it first to see whether their high school got in.  Then they will glance at the schools the litigants want to compare and spend a couple of minutes seeing what data there is that they can assess (e.g., grad rates and SAT scores).  Because, even they realize that Newsweek and other magazines of its ilk don’t really spend the other 51 weeks of the year studying America’s 18,000+ high schools. Americans love rankings of all stripes and a magazine’s job is to amuse its audience.

The other thing that happens in chambers after the dust of a school enrollment fight settles is lamentation. I suspect that what most judges would privately tell the litigants is that if they truly wanted a positive outcome, the best thing two parents could do would be to agree on a school placement and support the child together in that placement.  For most children a custody war is a diversion from life and education over which they have no control.  In many instances it is clear that No. 36 ranked Conestoga High School is a superior school to No. 168 Fox Chapel.  But outstanding kids from Fox Chapel go to Harvard too and in the vast majority of custody disputes, Harvard is not really on the horizon.  There are always special cases where a child has really unique gifts (not as much as their parents think) or special educational challenges where a special educational “fit” is called for.  But, most judges grade on the “curve.”  They are not trying to raise young venture capitalists or nuclear physicists.  They want children who will not commit crimes and pay taxes when they grow up.  Judges get to see plenty of adults who are very bright but never mastered the “no crimes” or “pay taxes” thresholds of adult life.  So often they are put off by parents who think that a child custody trial is a sound means of securing maximum educational achievement.  Parents are often disappointed to discover that “The judge doesn’t seem to care.”  Ironically, judges do care, but from their elevated view on the bench they often see quite clearly that moving a child from No. 284 Haverford High to No. 126 Kiski will not vastly improves the chances for post grad studies in math at Stanford.

The ratings wars will go on because we love quick answers to complex questions. And if you have a custody case where you want to enroll Eloise in No. 113 Upper St. Clair while the useless father wants to keep her at a school that doesn’t even have a ranking, be certain to get the August 11 edition of Newsweek and bring it to Court so the judge can see that you are a concerned parent.  But don’t bet the down payment on a house in western Pennsylvania on the belief that the magazine is your ticket to a new life in a new town.  It’s not how the cookie crumbles.

An interesting and, yes, published relocation case was decided by the Superior Court on June 15. D.K.D. v. A.L.C. 2016 Pa. Super 123 involved custody of a child, age 8, who suffers from Pervasive Personality Disorder. The parents separated shortly after the birth of L.D.  They were not divorced until 2015.

L.D. showed signs of language and speech delays at 18 months and the formal diagnosis of an autism spectrum disorder was made at age 3. After separation the parents lived in close proximity to each other but father’s custody was limited to four hours during the week and alternate Saturdays for an additional three hours.  Whether rightly or not, mother appears to have insisted that visits be confined to her home because L.D. did not respond well to changes in location.

In February, 2014, father filed for larger blocks of custody and a holiday and vacation schedule. Mother responded with a request to relocate with L.D. to Florida where her mother resided. In March, 2015 with the trial of the conflicting claims concluded the relocation request was denied, the court noting that it saw the only change to be a possible improvement in mother’s life by living with her mother.  The Allegheny County court’s order also expanded father’s custody over time and instructed mother that L.D. could and should be taken from mother’s home during father’s visits.

The Order of March 23, 2015 prompted mother to file for reconsideration and special relief. One of the ostensible issues was the failure of the order to address custody for mother if she relocated to Florida without L.D.  Mother also sought a new order premised upon her securing a job in Florida with the US Dept. of Veterans Affairs.  Further upping the ante, mother expressed her intention to purchase a home in Florida for mother and L.D. to reside in.  The trial court took the bait, granting reconsideration and re-opening the record to take additional evidence in June, 2015.

The second hearing was the charm and an August 2015 order granted the relocation. This time the trial court found that not only would mother’s life be enhanced but L.D.’s as well.  The factors which previously weighed against relocation: stability for a child with learning/emotional problems, father’s inability to preserve a relationship following a 1,000 mile move and mother’s unjustified need to control father’s visits faded into the mists.  The remaining factors were adjudged neutral, which is to say favoring neither party.  Curiously, the trial court found that mother did a better job of providing for L.D.’s needs but also expressed confidence that father could step up to do more if mother would only permit that.  But the court found that, despite its prior findings, mother would probably be more cooperative if permitted to relocate away from father.

Father appealed and came out swinging with the canard that the trial court had resorted to the long reviled “tender years doctrine”, holding that young children belong with their mothers. The Superior Court axed that argument finding that the record showed no such prejudice.

But, the appellate court was troubled by the sudden shift in mother’s “circumstances” after losing the initial round of the case. Suddenly a $36-41,000 job appeared in Florida and equally suddenly maternal grandmother committed to acquire a $435,000 home for her daughter and L.D. to reside in.  From the opinion, these appear to be the only new facts underlying reconsideration.  Terming the new order of August 2015 a juridical volte face, the Superior Court found that the record did not support the new conclusions of life enhancement for the child.

In denying relocation during Trial 1, the Allegheny County court found that relocation would disrupt stability of school, neighborhood and friends for a child afflicted with a condition that made any adjustments extraordinarily difficult. The trial court also used mother’s professed willingness to leave the child with father in Pennsylvania if relocation were not granted as a tool to rule against father in Trial 2.  Thus, if mother moved and left the child behind, the child would inevitably have to move to father’s neighborhood and enroll in father’s school district.  Father’s offer to move into the child’s existing district if mother relocated without L.D., was not given any weight.  The trial court also found to have ignored the detriment of losing the existing health and behavioral supports in Pennsylvania that L.D. relied upon in addition to his parents.  In addition the Superior Court noted the inconsistency in finding that L.D. needed to preserve his relationship with his father in denying relocation during Trial 1 but finding that alternate weekend visits in Florida by father was an adequate substitute during Trial 2. In a telling observation, Superior Court Judge Bowes writes that aggregating blocks of visits around school breaks and summer is not a viable substitute for the regular twice weekly contact and alternate Saturday visits that L.D. had been accustomed to have with his father.

Mother’s conduct in relocating to Florida without L.D. while the litigation was still underway and sending L.D.’s grandmother back to Pennsylvania to assume primary custody also did not win her any favor. The appellate court saw this choice of not permitting father to have more time while mother was working at her new job in Florida as emblematic of mother’s insistence upon control.  Other inconsistencies also emerged.  Mother moved the Florida professing that she could find no work in Pennsylvania despite her law license.  She also professed that she could not afford to live in her current $290,000 home.  But with the help of her own mother she was able to secure a $435,000 home in Florida with only a $40,000 job and roughly $30,000 in support and alimony from father.  The Superior Court’s review of mother’s job search in the two years prior to her relocation revealed that it was almost exclusively in pursuit of employment in the Sunshine state.  The home acquired with grandmother’s support is two hours away from grandmother’s own home so that the wholesome image of a tri-generational family in one place proved to be illusory.

Finding that mother’s actions “expose her insincerity” the Superior Court reversed the order granting relocation and directed the trial court to hold a hearing to determine how L.D. could be transitioned to live with his father. If mother abandons Florida to resume residence in Pennsylvania the panel suggested she file a petition to modify the now “corrected” custody order.

This case is disturbing in many aspects. Experienced practitioners are used to seeing parents play that “You want more time, I’ll move away” card.  It would appear that even after a year to prepare a relocation case Trial 1 was an abysmal failure for mother; with little evidence of any real benefit to relocation.  But having burned both time and money failing with Trial 1, mother was instantly permitted to “double down” and change the entire theory of her case with new facts.  Reconsideration of a court ruling is supposed to be limited to correcting the evidence or understandings that were of record.  It should never be an invitation to “re-try” a different case employing different facts or theories.  In a world where custody cases are always fluid with ever changing facts, courts need to insist that absent truly compelling circumstances, litigants get one trial at a time.  A child who, by all accounts, fears change and needs stability has endured 2 years of litigation and will now experience two relocations and a change of primary custody because mother decided not to line up a credible case until after she had lost the first trial.  Both the bench and the bar need to realize that the quest for complete records and best interests can often produce enormous backlogs, huge legal bills and instability for the very children we are all tasked to protect.  The Superior Court appears to have done the right thing in reversing this chain of errors.