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.”

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

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

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

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

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

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

Accidents happen and there are times when minutes or hours can be critical to a person’s survival or recovery. These can also be times when a family member or spouse is thrust into a decision-making role which they are either physically, psychologically, or emotionally unfit to handle. In such situations, it is not uncommon for the family to call their lawyer or a friend who is a lawyer to help them determine their options.

I was recently confronted with a situation by a colleague of mine: a family was badly injured in an accident with the children and father being unconscious and needing surgery while the mother, though conscious, was not emotionally equipped in her condition to make medical decisions for her husband and children.

My colleague is the friend-who-is-a-lawyer and is doing his best to help the family during their emergency.

The question was what could be done to take that decision-making out of Mom’s hands quickly, voluntarily, but that she could easily reclaim when she had recovered further. Due to being conscious and competent to make decisions, we could not pursue any incapacity claims through the Orphan’s Court and that process would take too much time, anyway, even as an emergency matter.

Our client’s children are being treated in the ICU of their hospital. Having had the experience of being a parent with a child in that unit, I immediately knew the answer to my colleagues question was with one of the hospitals best non-medical resources: their social workers.

Most hospitals, but children’s hospitals in particular, staff their floors with social workers whose job is to help families navigate the variety of services and programs that may be available to them. This can be critical for helping a family enroll a disabled child in Medicaid or finding counseling for grieving parents.

I recommended to my colleague that they contact the ICU floor’s social worker and see what they had available to accomplish this narrow and targeted relinquishment of decision-making authority. The social worker for the hospital knew the answer immediately and provided us with a medical consent authorization form within minutes.

Using this form, we were able to have our client transfer to a family member her power to consent to necessary medical treatment to her children and her husband. She was able to focus on her recovery and not exacerbate her emotional trauma by being forced to make decisions on the treatment of her family.

We now keep this form ready in our litigation and estate planning departments in case of any future emergencies. Knowing there are resources like social workers in hospitals, however, has value unto itself and should be kept in mind as one of the first people to be in contact when trying to manage a medical emergency.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

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Copyright: 123RF Stock Photo

Discussing “how to survive the holidays” during the holidays is a pretty standard article for people to write. For many clients, such articles allow for self-reflection on how they approach the holidays and their interaction with their ex-spouse; or it helps build some confidence that they will manage the uncomfortable situations which arise around extended family. The problem is, if you are a client looking for advice on how to deal with holiday-related legal issues during the holidays, it is already too late to do anything. Due to scheduling constraints, attorney or client availability, negotiations and conferences, dealing with, for example, a Christmas issue should really begin in September or October.

Consequently, now that the winter holidays are nearly behind us, the next major source of friction for many people is how they are going to handle their kids’ summer vacations and educational decisions. Which camp? How many camps? When will you take vacation? Where is the vacation and who will be there? Who will be covering the kids? Who gets priority on choosing vacation weeks? Should there be a change in schools or extracurricular activities?

Addressing any or all of these questions cannot first occur in May. The earlier they can be addressed the greater the probability they will be worked out between the parties or, failing that, allow for enough time to take the issue to Court and have a decision rendered. Do not wait too long – the court will not consider a summer issue an “emergency” and allow for an expedited hearing simply because there is little time between when the disagreement occurred and when a decision must be made. You may find that petition slotted into the non-emergency hearing list and the ultimate decision affecting your 2016 summer instead of 2015.

Many family law attorneys notice a bump in their cases right after the holidays. People often wait to address issues until they have made it through this time of year and have the time and space away from friends and family to deal with a deeply personal issue such as divorce, or address a potentially contentious custodial issue. Having survived the holidays, or perhaps as a result of what happened over the holidays, they need to discuss their options or pursue an action. It is also a good time to take stock of what may come up in the near future.

This time of year is ideal for looking at the next six months in order to alleviate some of the stress and concern they may have about summer vacations or child care coverage when the kids are out of school. If you think that there may be a legal or logistical issue over the summer or following school year, it is worth the call to your attorney to review your custody order or the applicable agreement and see whether you need to address your concern sooner rather than later. You may save yourself significant amounts of money, aggravation, and disappointment.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

Tools of the TradeA Superior Court opinion was handed down on February 4, 2014 addressing the issue as to whether or not a trial court must address all 16 factors enumerated in 23 Pa. C.S.A. §5328 when the custody hearing is only considering a “discreet and narrow issue ancillary to a materially unchallenged custody arrangement.”

That this question exists is due, in large part, to some of the ambiguity that exists surrounding the custody statute which was amended in 2010. Within that amendment, it was established that there were 16 factors which should be utilized in deciding a custody case. When making their custody decisions, judges must articulate on the record how each of those factors weighed into their decision.

A question arose, however, whether a trial court needed to address each of those individual issues within each and every custody action. In the case of M. O. v. J. T. R., 1757 E.D.A. 2013, the parties were able to resolve by agreement all of the issues related to their custody dispute. The action began when father filed a petition for modification of their 2007 agreed parenting plan. The Chester County Court of Common Pleas judge in the case conducted pre-trial conferences at the parties’ request during which they ultimately narrowed their issues down to whether father would be required to take time off from work during the three weeks of his summer custodial vacation time.

The trial court heard testimony limited to just that issue and, on May 22, 2013, the court issued an order allowing father to continue working during his summer custodial time. Mother’s motion for reconsideration was denied by the court and she filed a timely appeal to the Superior Court.

Mother first raised the issue regarding the limited evidence presented in the case, but the Superior Court points out that she consented to a hearing on a single, limited issue left over from the overall agreement the parties reached.

Mother then argues that the trial court did not expressly consider each of the 16 factors set forth in 23 Pa. C.S.A. §5328(a) when it rendered its decision.  She cites the requirement under §5323(d) requiring the trial court to provide its rationale for its decision.

The trial court determined, and was upheld by the Superior Court, that because the hearing was limited to a single, narrow issue, it did not have to address each of the 16 factors.  Moreover, the trial court concluded that “most of the factors are not relevant to the issue of father’s summer employment schedule and that the parties did not present evidence concerning the majority of the factors.”

The main issue for the Superior Court was that under §5323 of the Custody Code, the court must provide the rationale for a specific section of custody awards, namely, 1) shared physical custody; 2) primary physical custody; 3) partial physical custody; 4) sole physical custody; 5) supervised physical custody; 6) shared legal custody, and; 7) sole legal custody.  The court interpreted §5328(a) as being a requirement when one of those seven custody awards affected and that “while the trial court’s ruling modified its prior order, it did not change the underlying award of custody.”

This case is important from the standpoint that it helps shape the extent to which the trial court must delineate its decisions by each custody factor.  It is certainly a guide to practitioners as to what type of custody hearing requires the full articulation of each of the 16 custody factors in a custody trial.

M.O. v. J. T. R., 2014 Pa. Super. 15

(Photo Credit: www.123rf.com)

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty.

Leslie Spoltore in our Wilmington office recently wrote on the Delaware Trial Practice Blog about Delaware’s “stand-by guardian” laws which allow a parent or guardian “afflicted with a progressive, chronic condition or terminal illness to make arrangements for the future care of their child without terminating their own legal rights.”  This law allows parents and guardians to responsibly plan for the care of their children without having to be concerned about estate disputes or disagreements among survivors as to who will care for an orphaned child.  Coupled with solid financial estate planning and an individual suffering from a terminal disease is able to truly get their affairs in order well in advance of their death.

 

College football recruiting can become, for a sought after recruit, the perfect intersection of where talent meets commoditization; in other words, recruiting is where the athletic talents of the amateur student-athlete attract the attention revenue generating college football programs.  Recently, however, an incident between a student-athlete and his mother highlights the conflicting agendas and motivations that people may have in a student-athlete’s life. 

 

Alex Collins is a running back from Plantation, Florida. He’s rated as the fifth best high school running back by a service that evaluates players.  A talented player such as Alex will garner national attention from major football programs.  Surprising many people who thought he would stay near home at University of Miami, Alex, instead, chose to attend the University of Arkansas. 

 

(Photo by www.atlantablackstar.com)

We have explored in this blog the family law issues that can arise for professional athletes and how their families can create problems and require the intervention of attorneys, if not the police.  Alex Collins situation on the National Letter of Intent Day highlighted that it is not just professional athletes who have this issue, but that the interference of family and friends in an athlete’s life really begins in high school and through the college recruiting process.

 

This year, the earliest a graduating senior could officially commit to play a sport at the college level was on February 5th which has become known as the National Letter of Intent Day.  Typically, however, a student-athlete signs their “letter of intent” – which are more appropriately called “grant-in-aid” letters – and commits to playing their sport the following year for a university in exchange for having all or some of their costs covered by the institution.  It is an important milestone for a student-athlete that has grown in media coverage over the past several years, so much so that your can find webcam coverage of schools’ fax machines as the letters roll in.

 

Alex’s school scheduled a media event for the morning of February 5th where he could sign his letter of intent, however, it appears his mother disputed the decision so strongly that she took the letter and fled the premises of the school, thereby preventing her son from becoming a Razorback.  According to news reports, Alex’s mother wanted her son closer at home at the University of Miami.  Speculation ran rampant as to whether there might be more nefarious factors in play (universities and the NCAA have had to deal with inappropriate financial benefits paid to recruits from boosters and third-parties for decades).

 

The application of this fiasco to family law is unique – Alex is a minor and could not sign his letter of intent and other documents to attend Arkansas without a parent.  By taking his letter and refusing to sign it, Alex’s mother was making a last ditch effort to keep her son closer to home (perhaps not her last ditch effort – she’s hired the late Johnnie Cochran’s law firm, The Cochran Firm, to represent the “family’s interests”).  Alex’s father subsequently co-signed his letter of intent and Alex – for now – will play at Arkansas next year.

 

(photo by www.atlantablackstar.com)

It begs the questions: who has the right to sign off on a child’s college choice when they are a minor?  How much contact can a school have with a recruit and can a parent bar access to their child?

 

In Pennsylvania, a child is a minor until they reach eighteen (18) years old and under 23 Pa.C.S.A. § 5101, any individual 18 years of age or older shall have the right to enter into binding and legally enforceable contracts.  Due to the fact that direct recruiting from college coaches can begin when a student-athletes are in their junior years (written correspondence starts earlier), parents wield varying degrees of influence and can control access to their children by college coaches.

 

This is a difficult path to navigate for college coaches. Brian Flinn is the wide receivers coach and recruiting coordinator for Villanova University and identified it as standard policy that all letters of intent and applications must be co-signed by a parent of the recruit if they are a minor.  Moreover, he acknowledges the importance of developing rapport with the player and the parents. “It’s important for us to be honest and upfront each step of the way so parents can trust us and our programs,” says Flinn. 

 

The stress of recruiting, as highlighted by the Collins situation, is not limited to the kids. “If we haven’t built a solid relationship with the prospect and his family we run the risk of losing him when they are overloaded with information – and misinformation – as Signing Day approaches.”  The advent of social media, according to Coach Flinn, “opened channels to prospects that were previously unavailable…and has also given opposing coaches access to your committed prospects – making it even more important to build a great relationship with prospects and their families.”  In the end, Flinn believes, all of the influences, social media, and attention really has not changed the fundamentals of recruiting: “find the players that best fit your program and left them know, honestly, why your university is the best place for them for the next four years and a foundation for the rest of their lives.”

 

Under Pennsylvania law, theoretically, the issue of college education is not specifically addressed in the code and is specifically excluded as an expense requiring contribution to by the parents under the Support Code.  During the period of time the child is a minor, however, I could see how one parent could leverage their legal custody rights to block a university’s access to their child, or otherwise prevent the child from taking a visit to the school.  If Alex Collins lived in Pennsylvania and his parents were separated with joint legal custody, could his mother have sought judicial intervention under the custody order to prevent Alex’s father from signing the letter of intent? Reasonably, it would seem that no matter what the actions of his parents, Alex will be able to attend whatever school he chooses as soon as he turns eighteen; perhaps he would have to wait to officially commit to a school until his birthday, but I can not fathom a court intervening to decide where a student-athlete like Alex would go to school; unlike elementary or high school, the Court would not engage in an educational analysis to see whether one university is better than the other.

 

Alex Collins situation is an unfortunate combination of the competing interests among the adults in his life interfering with his decision as to where he will attend school.  An optimist would say that all of those involved in Alex’s decision have his best interests at heart.  That said, based upon the events surrounding his recruitment, perhaps there is a more obvious reason why he’s moving half-way across the country for school?

If you are like most parents, you spent this past weekend thinking about what your kids needed to be ready for school, which can be stressful enough by itself.  If you are like some of my clients, you may have spent part of the weekend also worrying about  how to navigate through the beginning of school with your kids’ other parent, which can just add to the stress.

I want to take this moment to share with you some tips that all parents need to consider and also share some additional tips for those parents who are raising their kids in separate households to help alleviate the stress and help you enjoy what is surely an exciting time for your children!

1.       Breathe.  First and foremost, breathe!  If you have been separated for awhile, and you are anxious about the school year because history proves this year may be a struggle with your children’s other parent, take a deep breath!  Say the serenity prayer, resist being pulled into the struggle, resist drama created by the other parent, and try not to sweat the small stuff.

2.       Check your custody Order.  The biggest concern my clients have when facing a new school year is the fear of being left out of important information regarding their children.  They worry the teacher won’t know how to contact them, or they worry they may be blocked from getting access to their children’s records.  If you are raising your children apart from their other parent, you likely have a custody order outlining your roles and responsibilities.  The vast majority of parents share legal custody.  What this means is that each of you have an equal right to contact the school, the teacher, the doctors, etc., to make sure you know what your children need to be ready for their first day and the right to keep in contact with everyone to track your children’s progress.  If you are not sure if you have shared legal custody or the right to directly contact the school, check with your lawyer before taking any action that may go against the order you have.  Some parents readily share information with one another and are able to successfully work together to make sure the school knows about their situation and knows to contact both parents.  However, for some, this is just not their reality.  For the parents who are in this category, my advice is simple.  Call the school and let them know your children live in two households and ask that they contact you, in addition to the other parent, if there is an emergency.   The same advice is true of doctors and other caregivers of your children.  If you can’t keep the dialogue open with your children’s other parent, take steps to keep the dialogue open with everyone else who interacts with your children on a regular basis.

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