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Archive for the month “February, 2014”

Unemployed and Retired? You, too, Can Double Dip.

I was quoted in the The Fiscal Times August 17, 2011 article Unemployed and Retired?  You, Too, Can Double Dip.  

If you do not feel like reading the article, the nuggets of wisdom I shared were these (quoted directly from the article):  “There is no conflict between collecting a Social Security pension benefit and unemployment compensation at the same time as long as each agency is apprised of the income received from the other,” says James Cushing, a Pennsylvania lawyer specializing in unemployment compensation.

 

Vicious Adversaries

Check out Faye Cohen’s blog post “Vicious Adversaries” on her blog Toughlawyerlady here.

A Red Light to Red Light Cameras In New Jersey Town

As my readers likely know, I am a vocal opponent to red light cameras.  I think they are generally unconstitutional and ineffective.

I have written on this subject before which you can see here:

Apart from the above, I am happy to say that as of this past Tuesday, February 18, 2014, the township of Brick in New Jersey has officially turned out the lights on the Red Light Camera program.  Here are some news articles on the subject you can check out here and here.

The township officials in Brick found that not only where these cameras ineffective at their stated goal of making the streets safer, they actually may have caused more accidents as rear end and “t-bone” collisions have increased since the red light cameras were installed.

I hope jurisdictions like Ohio and Brick Township New Jersey are a harbinger of things to come in Pennsylvania and elsewhere, and the experiment of the red light cameras will come to an end very soon.

Cheltenham Township Not at Variance with the Law Regarding Church

For the second time over the last year, a congregation of the First Korean Church of New York, Inc. (hereinafter “the Church”) finds itself embroiled in litigation against its local government regarding various issues of land use and taxation.  Accordingly, the United States District Court for the Eastern District of Pennsylvania recently entered an opinion in the matter of First Korean Church of New York, Inc. v. Cheltenham Township Zoning Hearing Board and Cheltenham Township, case number 2005-6389.  The parties in the above-referenced case engaged in extremely extensive tangled litigation since at least 1998, when the Church was cited by Cheltenham Township (hereinafter “the Township”) via its Director of Engineering, Zoning, and Inspections, and worked its way through the local zoning board, multiple hearings and applications for special exceptions and variances by the Church, disputed tax assessment, litigation in Montgomery County Court of Common Pleas, and ultimately the litigation at issue in this article starting in 2005 which reached the point of cross motions for summary judgment filed by the parties heard by the Eastern District.  The primary issue addressed by the parties and, of course the Court, is how the Religious Land Use and Institutionalized Persons Act (hereinafter “RLUIPA”) and the First and Fourteenth Amendments of the U.S. Constitution apply to the parties herein, and it is this application that is the subject of the instant article.  Procedurally, the Court has found itself ruling upon cross-motions for summary judgment filed by the parties,

 

Cheltenham’s Zoning Ordinance of 1929 established so-called “R-Residence” districts pursuant to a development plan for the Township.  If a party wishes to use his/its property for religious uses in an R-Residence district, the appropriate procedure is to petition the Zoning Hearing Board for a special exemption.  The Zoning Ordinance of 1929 was amended in 2003 and, at that time, nearly twenty (20) percent of the Township was tax-exempt.

 

The Church purchased the property-at-issue (hereinafter “the Property”) in 1996 at a sheriff’s sale.  The Property was formerly a seminary consisting of three (3) buildings.  The first building has one-hundred and ten (110) rooms which the seminary dismantled; the Church only uses the first floor and the remainder is unusable.  The second building has forty-four (44) rooms which were without heat, generally dismantled, and mostly demolished.  The pastor of the Church and his wife lived in the only three (3) usable rooms of the second building.  The third building is empty.  The campus consisting of the aforesaid three (3) buildings is surrounded by a wrought-iron fence with two (2) entrances (one able to be opened via remote control).  In 1998, the Church erected a sign at the Property which resulted in Township sending the Church a letter indicating the Church was in violation of the above-mentioned Ordinances as the Church had not obtained a special exemption to operate a church in an “R-Residence” district.  The aforesaid letter from the Township sparked the next nearly fourteen (14) years of litigation.  The Township subsequently did two (2) inspections of the Property and found it in significant disrepair.

 

The Church appealed the Township’s findings described above and sought a special exemption for the Property to use it as a seminary and functional church, which would include a parking lot, library, and dormitories.  The Church’s proposed use of the Property would use seven (7) of the Property’s thirty-three (33) acres.  The zoning board denied the Church’s request for a special exemption on the bases that the seminary was not approved by the Commonwealth and the Property was too deteriorated to sufficient repair it.  Further, the Township did not believe a seminary was consistent with a residential area.  The Church appealed the denial to Montgomery County Court of Common Pleas, and subsequently all the way to the Supreme Court of Pennsylvania, all of which ruled in favor of the Township.

 

In 2000, while the above-litigation was in process, the Church filed a second application for a special exception.  The substantive difference with the second application, as compared to the first, is that the Church was already operating a seminary on the Property; the Church argued that this was a “substantial change”.  As a result, the Church’s latest application requested approval of their continued use of the Property as a seminary.  The Zoning Board denied the reapplication noting that a “substantial change” refers to the condition of the Property, not its use.

 

Undeterred, the Church applied for a variance in 2007.  When pursuing the variance, the Church did not raise any argument pursuant to the RLUIPA, and refused to include a claim under RLUIPA despite being given the opportunity to do so by the Zoning Board.  The Zoning Board denied the Church’s request for a variance pursuant to the Pennsylvania Municipalities Planning Code as the Church did not meet the criteria laid out by the same.

 

While all of the above was proceeding the Church also pursued tax exempt status for the Property.  The Church’s application in 1998 for tax exemption for the Property was denied by the court, employing the logic that as the Property was not authorized to be used as a church, the Church could not secure tax exemption on that basis either.  The Church appealed and in 2006 the Commonwealth Court ruled that tax exemption is based on actual use and not just authorized use; accordingly the Commonwealth Court remanded for the purpose of determining the Property’s actual use.  On remand, the Montgomery County Court of Common Pleas held a two-day trial which found that the was no regular church use at the Property since 1998.  This decision, too, was appealed, unsuccessfully, to the Commonwealth Court.  On remand, the Court of Common Pleas ruled that the Church was not eligible for tax exemption as the Property was not used as a regular place of worship.

 

After pursuing years of litigation, as described above, the Church, in 2005, finally brought the action in the Eastern District Court of Pennsylvania which just recently reached resolution.  The Church’s federal action challenged the 1998 and 2000 denials of a special exemption.  The Church claims that the denials of the two (2) special exemption requests violates the RLUIPA and the First and Fourteenth Amendments.  Ultimately, the parties filed cross-motions for Summary Judgment and it is on these motions that the District Court entered the opinion that is the subject of this article.

 

The Church raised seven (7) events which it believed were violative of the RLUIPA and the First and Fourteenth Amendments: (1) the 1998 denial of its request for special exemption; (2) the 2000 denial of its request for special exemption; (3) the validity of the 2003 ordinance requiring a variance to be filed for religious uses; (4) the denial of the 2007 variance request; (5) the police monitoring the Property; (6) the Township threatening to fine it; and, (7) the Township’s claim that the Church’s use is illegal.

 

Before moving on to the substantive issues, the court addressed the applicable statutes of limitations under the RLUIPA.  The court ruled that the RLUIPA’s statute of limitations is four (4) years.  As the Church brought its action in 2005 for an issue arising in 2003, and filed its amended complaint in 2008, including a claim for an issue in 2007, its action was timely.  Further, the police monitoring in 2009 – 2010, the ongoing threat of fines, and the property usage, are all timely claims.

 

The core of the Church’s RLUIPA claims is that the Township has substantially burdened its religious exercise.  The RLUIPA defines “religious exercise” to include any exercise of religion, including the use of real property.  What constitutes a “substantial burden” is interpreted in accordance with the First Amendment’s free exercise clause.  A “substantial burden” is one which meets one or both of two (2) factors: (1) where a religionist is forced to choose between his religion and benefits generally available to similarly situated non-religionists; and, (2) government applies substantial pressure on a religionist to change his behavior and/or violate his beliefs.

 

In support of its RLUIPA claims, the Church claimed that the Township treated it less than equally as compared to a secular party.  Under the RLUIPA, the Church had to demonstrate four (4) elements: (1) it is an religious institution; (2) it is subject to land use regulation; (3) it was treated less equally than a secular institution; and (4) the previous has caused no lesser harm to the interests the aforesaid regulation seeks to advance.  In sum, the Church must identify a similarly situated secular institution treated better than itself in regard to the objectives of the regulation at issue.  The Township persuasively argued that the 2003 Ordinance was to counteract the enormous tax burden on landowners inflicted upon them in large part consequent to the fact that nearly twenty (20) percent of the Township is tax exempt.  The Township also indicated that the purpose of the Ordinance was for the purposes of regulating population density, preserve open spaces, provide for the residents’ recreational needs, as well as expand religious as well as educational facilities.  The Church argued that it would serve the same purposes per the Ordinance as a the construction of a local golf course; although arguably true, the Church failed address the fact that the golf course, contrary to the Church, would increase the local real estate tax base, which is the primary purpose of the ordinance.  Based on the above, the Court ruled in favor of the Township with regard to the application of the 2003 Ordinance.  The Court further ruled against the Church by noting that the 2003 Ordinance treats both religious and secular educational (and/or other tax exempt) institutions equally.

 

The Church next argued that the Township, violating RLUIPA, essentially effected a total ban on religious institutions in the Township.  The Court rejected this argument explaining that the Township did not prevent the Church from being in any other location aside from the Property, nor did it take any action to exclude the Church from the Township altogether.

 

The Court then moved on to ruling on the Church’s Constitutional claims.  At the outset, the Court ruled that any claims under 42 U.S.C. Section 1983 were subject to a two (2) year statute of limitations.  The Court also expressed serious doubts as to whether any statute of limitations applies to a First Amendment challenge.  The Court ruled that virtually all of the Church’s claims regarding the 2003 Ordinance as applied were barred by the statute of limitations as the Church’s complaint was filed more than two (2) years after the state court judgment(s) against the Church.

 

When analyzing the Church’s First Amendment claims, it noted that the free exercise clause does not include land use as a religious exercise.  Therefore, the Church must demonstrate how its inability to be in its desired location affects its religious exercise.  The Court first ruled that the Church was not using the Property for a religious purpose when it requested the 2007 variance, therefore, by definition, the denial of the same could not impair the Church’s religious exercise.  Furthermore, the Court ruled that the Church did not demonstrate how its inability to establish itself at the Property, as opposed to any other location, has affected its religious exercise.  Furthermore, the Church failed to show how threats of fines, allegations of illegal use, and being monitored by the police affected its religious exercise.  Based on the above, the Court ruled against the Church on these issues.

 

The Court further ruled that a law or ordinance meets constitutional muster if it is neutral and generally applicable with only an incidental burden on religious practice.  The Court ruled that the 2003 Ordinance is neutral and was not drafted with the purpose to impair the practice of religion.  It further ruled that the 2003 Ordinance was generally applicable as it addresses both secular and religious institutions equally to further its purpose of increasing the local real estate tax base.  As the 2003 Ordinance is neutral and generally applicable, it is not subject to strict scrutiny; it only must satisfy a rational-basis review.  Using the rational basis test, the Court ruled against the Church because the Church failed to demonstrate that the goal of increasing the local tax base is a constitutionally impermissible goal or that distinguishing between taxable and tax exempt uses is not rationally related to that purpose.

 

When making its Fourteenth Amendment claims, the Church must prove that it was treated differently by the Township as compared to a similarly situated secular institution applying for a variance.  As above, the Church again argued that it was similarly situated to a local golf course seeking a variance, yet, again as above, the Court ruled that the Church failed to adequately consider the 2003 Ordinance’s purpose of increasing the tax base.  The Court ruled against the Church indicating that treating taxable and tax exempt uses differently is rationally related to the purpose of increasing the tax base.

 

In sum, the Church, when making its claims under the RLUIPA and the United States Constitution, simply failed to demonstrate that the actions taken against it were due to its religious affiliation as opposed to some other legally permissible neutral reason.

Originally published on August 21, 2012 in The Legal Intelligencer and can be viewed here.

Rules of Engagement

My old parish priest, and friend, from when I was a member of Saint Anne’s Episcopal Church, Abington, PA is Father K. Brewster Hastings.  A few days ago, Fr. Hastings sent me an email with an excellent essay by Fr. Tom Monnat regarding the dire need, no, more like necessity, for men to be in, and involved with, the Church.

I thought the essay was very insightful and worth sharing.  The essay is posted below.  I hope you find it as worth reading  as much as I did.

RULES OF ENGAGEMENT

The non-Super Bowl is behind us. After the Sea Hawks [at least in Philly we are grateful that they are 

named after some birds] built the lead to three touchdowns I turned off the tube. Any chance of getting
engaged with this dud of a championship was over.

It is like that for many guys. Whatever the event may be, if it fails to engage our male minds and
emotions, men will pull the “off” switch. This appears to be especially true of religion and church going.
Too often church services leave many males wondering whether they should have stayed in bed and let
the wife and kids do the “church” thing. This presumes that the guy was there in the first place, which is
less and less the case. There is nothing new about the disparity between male and female church
attendance.
It is, however, getting more lopsided, like last night’s score. There are encouraging exceptions but the
pattern persists.

The book Why Men Hate Going to Church has been revised and updated since its original publication in
2005. Author David Murrow says that “new research reveals the importance of men to congregational
vitality and growth. Almost without exception, growing churches draw healthy numbers of men, while
declining congregations lack male presence and participation.”

Murrow offers both diagnoses and prescriptions for the absence of men from both traditional and
contemporary churches. While I don’t cotton to everything he lays out, I can certainly support an overall
theme of the
book- the non-engagement of average guys from the “culture” of many parishes
– a culture which has become largely feminized. Having been in that culture for more than thirty years, I
can attest to the truth of his claim. Without women parishes would not exist. Without men parishes are
weak and ineffective, and tend to be inwardly focused.

The good news is that men will happily attend a church which signals that it knows what they need. You
don’t have to change the church in radical ways, yet certain signs must be present; call it the scent of
manliness. Here are a few components [both my own and the book’s]:

1. The pastor is a real guy and acts like it. He leads without begging or acting “girlie.” He means what he
says and says what he means. Men can trust him because he is willing to confess his struggles and not
appear to be above the fray. In St. Luke’s description of the call of the first disciples, it is clear that those
men saw an authenticity and courage in Jesus that demanded an immediate response. When a military
commander issues an order, the troops don’t sit around in a group and “share” about it. Too much
church time is spent “sharing” and not enough acting.Turn that around and you will have more men in
church.

2. The sermon is short and to the point, with solid illustrations and often containing visual images or
objects. The usual attention span of adults [both men and women] today is somewhere around 5-10
minutes. “What about the mega churches,” you might ask. After all, Rick Warren preaches for thirty or
forty minutes. With all due respect, Father X, you are no Rick Warren. The source of his success was in
building a church for men who didn’t like going to church. Far better that you spend more time
preparing an engaging ten minute sermon than trying to show off your immense knowledge of Holy
Scripture, theology and church history. What is the rule – an hour of prep for every minute in the pulpit?
Your men will thank you for keeping them engaged. Less is more for a man – less talk and more action.
As for bible “study” [a threatening concept for many guys] the teachers who reach men usually begin
with a real life situation or challenge, and then bring Holy Scripture into the matter to show how God
acts. Good teachers do not begin with questions nobody is asking.

3. The hymns or praise songs are not always syrupy sweet “love songs” to Jesus. The wise music leader
will insert some strong hymns of faith and manly courage into the mix. The call of the first disciples was
to “follow me,” not “fall in love with me.” To follow Christ suggests a band of brothers marching off to
battle with their captain in the lead, rather than a small group holding hands and gushing about their
love affair with the Lord. Is this a stereotype? Of course, but it needs to be said. Murrow points to an
almost exclusive emphasis on a sentimentalized Christ the “Lamb of God,” in many congregations, to the
exclusion of Christ the “Lion of Judah.” There is a long history to this which I won’t get into. One of the
best lines in Murrow’s book has well meaning church leaders apologizing for Our Lord’s violence in
throwing the money changers out of the Temple. “Don’t worry – he’s not always like this!” Yet there are
far more Lion of Judah sayings and actions of Christ in the gospels than there are Lamb of God ones.

4. On Father’s Day, how about praising the men as much as you do the women on Mother’s Day? Too
often the guys get a critical earful about how they are not living up to the standards of husbands and
fathers, while the mothers hear how terrific they are for their sacrificial life styles. This often comes out
of the mouths of feminized pastors who may have “father” issues themselves. Murrow points to just
such a pastor who, because he was afraid of other men’s power and strength, turned to bullying them
from the pulpit.
He wisely got counseling for his problem.

An argument can be made for the other side of much that I have written above. I get that! The church
needs both men and women in order to be whole; but that is the point. We will not be whole as long as
men are missing or marginalized. A predominantly female congregation led by a male minister is not the
balance we need. It is who occupies the pews that counts. Churches must learn how to get men off the
bench and into the game.

God bless you this week,

Fr. Tom Monnat

Absolute Paternity Presumption Estopped

A recent case heard by the Pennsylvania Supreme Court, K.E.M. v. P.C.S., No, 12-0405, has potentially reversed years of Pennsylvania common law by changing who could be held responsible for a child support order.

 

In K.E.M., it was revealed that a married woman (“the Mother”) had a child (“the Child”) as a result of an adulterous affair.  The Child was born during the Mother’s marriage and her husband (“the Husband”) assumed parental responsibility over the child, despite the potential cloud over the Child’s paternity.  Eventually the Mother attempted to seek a child support order against the Child’s biological father (“the Father”) after discovering, pursuant to a paternity test, that the Husband was not the Child’s father.  The Child had a limited relationship with the Father as he occasionally spent time with the Child and gave him gifts.  Indeed, the Child called both Father and Husband “Daddy”.

 

In response to the Mother’s attempt to secure a support order against him, the Father filed a Motion to Dismiss, arguing the traditional defense of estoppel, which states that as the Child was born during the course of Mother’s marriage, and Husband had assumed parental duties, Mother was estopped from seeking child support from him.  Indeed, the traditional estoppel defense, as described above, raised absolute bar to a mother seeking support from a biological father when a presumptive father exists.  As Husband had assumed parental duties, under the traditional estoppel argument, he would be the presumptive father of the Child, which would make him liable for the support of the Child, regardless of the state of his relationship with Mother.

 

The Pennsylvania Supreme Court, by a 5 to 2 vote, elected to modify the traditional estoppel defense described above.  The Court ruled that the doctrine of estoppel should not serve as an absolute bar to pursue a biological father for child support when a presumptive father exists.  Instead, the Court ruled that the presumption ought to be rebuttable if it serves the best interests of the child and, at the very least, if the biological father could serve as a witness at a child support hearing.  Further, the Court ruled that in these cases a court ought to have the option of appointing the subject child a guardian ad litem with the identity of the biological father being relevant to determine who ought to pay for the guardian.  Finally, the Court ruled that the Uniform Act on Blood Tests to Determine Paternity is to be applied in terms of how it authorizes paternity testing in cases which involve separation and/or divorce.

 

The dissent felt that the Court did not go far enough.  Specifically, the dissent felt that the Court sent a poor message to mothers and potential fathers.  The dissent observed that the traditional estoppel defense rewarded husbands to immediately discontinue a relationship and financial support for a child as soon as a question as to his/her paternity is raised for fear of having to pay for the support of that child until s/he reaches majority.  Indeed, the dissent noted that it also served to allow a biological father to avoid his parental responsibilities by punishing the noble acts of a presumptive father.

 

The case at issue here was remanded for further investigation of the facts, therefore this area of the law is now clearly in flux and continued development appears to be on the horizon.

Published on August 21, 2012 as the featured article in Upon Further Review which can be viewed here and reprinted in Volume 34 Issue No. 4 (December 2012) of Pennsylvania Family Lawyer.

Technical Answers

Each Spring since 2000, I have held a seminar at Bucks County Technical High School giving high school students in Social Studies / Civics classes an “inside look” at the judicial branch of government and, of course, I look forward to doing it again in 2014!

When I go to BCTHS, I am invited to speak by my friends, and BCTHS teachers, Bob Woehr and Kelly Woehr.  I offer the seminar to Bob’s various social studies classes, of which you can learn more about here.  Recently, due to the questions raised by the students in Kelly’s Women’s Studies class, and the fact that her students remember who I am, her students decided to prepare a list of questions for me to answer to help them understand family law a little better.

Of course, I jumped at the chance to answer these questions; indeed many were insightful.  Once I finished my answers, I realized that, first of all, my answers were on the long side, but, more importantly, they also may be interesting to people other than just Kelly’s class to help them gain some insight into family law.  Therefore, I decided to post my answers here to my blog.  I hope they are helpful not just to Kelly’s class but to anyone who reads them.

I invite Kelly’s class to ask me follow up questions, or even more and different questions, and I will be happy to try and answer them.  If any of my readers have any questions, please submit them to me and, if I get enough of them, I will try and post a follow up to this post with more answers to your questions.

Here is my response to Kelly’s students’ questions: 

Thanks a lot for thinking of me and giving me the opportunity to answer your various questions.  I always enjoy coming into your class as a guest speaker and I appreciate that you remembered me.  You all have many questions but, as they all seem to have similar themes, I thought I would answer them all at once instead of one at a time.

When people divorce in Pennsylvania they can choose to do it through the “no fault” or “fault” processes (a third process exists for persons who are committed to a mental institution but that is extremely rare).  Before 1980 all divorces had to be “fault” divorces.  A fault divorce is one where one party claims the other committed a marital fault.  Marital faults include adultery, abuse, and abandonment.  In order to get a divorce someone had to be the victim of a fault and innocent of committing one, which is to say that the victim must not have committed a fault his/herself.  Since 1980, the Pennsylvania legislature passed the law allowing “no fault” divorce, which allows people to divorce without needing to prove a fault.  People seeking divorce need only show that they no longer wish to be married and either consent to it voluntarily through filing affidavits or wait to be separated for two-years.

Divorce, obviously, involves dissolving the marriage relationship, but it also includes dividing up the property in the marriage, which generally includes real estate (e.g.: a house), cars, investments, bank accounts, and personal property (e.g.: people’s “stuff”).  It also involves dividing up people’s debts and liabilities.  Sometimes, unfortunately, a marriage has more debt than property, which means no one really “wins” much money or “stuff”.  A court divides the property and debts up in an equitable fashion between the parties, which is another way of saying as fairly as possible.  When a court divides the property, it considers, among other things, the following things:

  • The quantity of marital property;
  • Who brought what property into the marriage and what it is worth;
  • The ages of the parties;
  • The health of the parties;
  • The length of the marriage;
  • The opportunities for the parties to earn money following the divorce (which is to ask, in other words, “who will make more money after divorce and how much more?”);
  • The standard of living during the marriage;
  • The work history and educational level of the parties;
  • Who has primary custody of the children (if any);
  • Whether one party elected to stop working to be a homemaker and/or child caretaker.

No one factor is determinative; the court looks at all of these, and more, together, before a decision is made, and balances them all out to try and make the parties come out of their marriage as fairly as possible.  Sometimes the court divides the marital property in half equally.  Other times, the court may give one party more money than the other.  Either way, it is for the purpose of ensuring the parties come out of the marriage as fairly as possible.

Divorces certainly cost money and some become extremely expensive.  The various courts charge fees, which all but the most destitute must pay, to file papers.  Also, each party to a divorce often, and should, hire a lawyer, and lawyers charge a fee for their services.  There are sometimes other expenses to secure evidence and other information.  These expenses are in place, respectively, to help fund the court, because being a lawyer is a profession for which payment for services is deserved, and because other services also have a value which must be paid.

            Sometimes, the parties’ finances are so unequal that the court has to order alimony in order to balance out the finances.  Alimony is money paid by one former-spouse to the other.  Alimony can be as short in duration as a few months of payments to payments for the rest of one’s life.  Alimony is also a way to ensure property can be divided properly.  For example, what if the party who has to share his/her assets with the other does not have it sufficiently liquid to do it?  In other words, what if the party who owns the house cannot sell it but still must give his/her spouse his/her share of the house’s value?  One way to facilitate this is the payment of alimony.

Many times children are involved in a divorce and the court has to decide how custody of those children is to be allotted between the parents.  Of course, children are also often born to unmarried persons.  Regardless of whether children are born to married or unmarried parents, the court must determine what sort of custody arrangement is best.  A court may only order who should/can have custody of children until the children turn eighteen (18) years old or graduate from high school (which ever occurs last), after that the children are emancipated and considered to be adults who are legally free from the custody and control of their parents (obviously, this does not necessarily apply to severely disabled children).  The court creates a custody schedule for the children and their parents that it believes is in the “best interests” of the children.  The court has multiple factors to consider when it decides what is, or is not, in a child’s best interests, such as, among other things:

  • Who has been the primary caretaker over the course of a child’s life;
  • Quality of school districts;
  • Quality of houses;
  • Quality of home life;
  • Criminal background of the parties;
  • Whether a child has siblings and where they live;
  • Distance between the parents;
  • Involvement of extended family;
  • Quality of parenting;
  • Whether a party has been abusive;
  • Respective finances of the parties;
  • The age of the children;
  • The age of the parties;
  • Where the children want to live (especially for older children);
  • How well the parties get along.

Just as with divorce above, no one factor is determinative; the court looks at all of these, and more, together, before a decision is made.  Barring very extreme circumstances, all parents are entitled to spend time with their children in some way.  Sometimes, even abusive or otherwise terrible parents, although they would not receive custody, will be awarded some sort of supervised visitation so that parental contact can be ensured.

Remember, the court must determine what is in the best interests of the child and it is presumed by law that contact between a child and his parent, no matter how minimal or supervised, is almost always in a child’s best interest.  Obviously, a court could determine that contact with a parent is detrimental to that child and completely restrict a parent from his/her own child, but this is a very rare situation.  Indeed, other than in the case of adoption (which is voluntary), only in extreme circumstances will a court involuntarily terminate a parent of all his/her rights to his/her child(ren).

The law specifically states that the court cannot discriminate between men and women when making decisions for property division in divorce and where children live in a child custody case.  Obviously, everyone has his/her own biases, including judges, but the law is clear in that discrimination between the genders is unlawful.  Many of you observed that it seems women tend to get more money out of a divorce and get primary custody of children more often.  I agree with your observations but that does not necessarily mean the courts discriminate in favor of women or that the court granted the money and/or custody because the party was a woman; there are other factors involved to consider.  The fact is, no matter how far feminism has gone in our culture, women still tend to, more often than not, perform the traditional gender role of being homemaker and/or the primary caretaker of children.  Even women who work outside the home for a living often tend to sacrifice their income and/or career options to work a job with hours and responsibilities flexible enough to enable them to care for their children; conversely, men still, generally speaking, have not assumed the role of homemaker or make the same sort of sacrifices women often make for their children.  Therefore, when people divorce, the woman is often the one with the lower salary (or none at all), the inferior opportunity for greater income after divorce, and/or the inferior financial position after divorce.  As a result, an equitable (i.e.: fair) distribution of property after divorce would be to give these women more money and/or alimony.  In the same way, women tend to be the primary caretakers of their children and, therefore, that tends to say the same after the parents to a child fall into a custody dispute.  Of course, it is worth mentioning, if a man is the one with the lower salary (or none at all), the inferior opportunity for greater income after divorce, the inferior financial position after divorce, and/or the primary caretaker of his children, then he would get a similar result as that of a woman in the same situation.

Many of you asked about abusive relationships.  The vast majority of the abuse cases I have had and seen are those of men abusing women, but it is not uncommon for women to abuse men.  Unfortunately, due to male pride, a woman’s abuse of a man often goes unreported.

Unfortunately, a child must abide by the court when it determines who the child must live with and when.  The older a child becomes, the more power that child has over where s/he lives, and his/her choice becomes much more determinative.  It is not uncommon for older children to refuse to comply with a custody order and, in my experience, the police will not force a child to leave one house and go to another.  Children also have the option of contacting the police and/or their local Department of Human Services (sometimes called Children and Youth Services) to get relief from a bad situation at home.  These government agencies can advocate for a child where his/her own parents do not or cannot.  Of course, the downside is that the involvement of these agencies means a child may be placed into foster care, which may mean a stranger’s home, and will not be able to extricate him/herself from it for quite some time until a court orders otherwise.

Finally, there were some questions which were somewhat random so I will answer them here:

  • I have dealt with many cases involving inappropriate sexual conduct with children but I do not think I have ever handled, or even heard of, a case where a woman sexually molested a child.  Instead, in these terrible situations, the woman will often be the one who turns a blind eye to the abuse committed by a man instead of the one doing it herself;
  • The most common type of case I see in my practice is a family law case (divorce, custody, and/or support);
  • Cases are settled out of court about 80% of the time, however family cases are settled out of court at a significantly lower rate;
  • The Judicial System is a system developed over centuries of time and it has its advantages and disadvantages like anything else.  I would say that I think in most cases justice tends to be done.  I think its biggest flaws are that lawyers can manipulate rules of procedure in order to avoid actually dealing with the substance and merits of case, and that money can cause way too much of an imbalance between what the parties can (or cannot) afford to do when litigating.

Thanks again for taking the time to ask me questions.  Please feel free to send me more if you have them and I hope to see you soon in Mr. and/or Mrs. Woehr’s class!

James W. Cushing, Esquire

 

 

Bye Bye Humanity

Check out Faye Cohen’s blog post “Bye Bye Humanity” on her blog Toughlawyerlady here.

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