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CLCP Seminar: Child Support Overview

I had a great opportunity to lead (perhaps “teach”) a continuing legal education seminar yesterday facilitated by the Christian Legal Clinics of Philadelphia and hosted by Drinker Biddle & Reath LLP.  The seminar was entitled “Proper Practice and Procedure of Family Law,” and I spoke on the Child Support Overview portion.  I was joined by several other capable attorneys who each had their own topics to present.

As I wrote the materials for my portion of the seminar, I retain the ownership of that portion, which is posted below in this blog.

Thanks!

__________

Pennsylvania child support law is critical in ensuring children have sufficient resources to meet their needs and that a non-custodial parent is invested – at least financially – in the rearing of his children.

  • Establishment of Child Support

 In order to establish a child support order, the person seeking support (the “obligee”) must first file a Complaint for Child Support with the family court.

A Complaint for Child Support is first heard by a support conference officer who receives the information provided by the parties and enters a proposed order based on that information accordingly.  The conference officer is not a master or a judge, so very little argument or advocacy will be possible at this point.  The support officer will merely receive paperwork and enter the data into his computer software to produce the proposed support order.

A child support order can only apply to one’s children.  A child born to a marriage is presumed to be the child of the husband in the marriage.  For a child born out-of-wedlock, paternity can be established either by the father agreeing to have his name put on the child’s birth certificate and/or acknowledging paternity at a support conference.  If a putative father disputes paternity, that issue must be fully addressed and resolved before a support order can be entered against him.  Paternity is its own niche area of family law and is beyond the scope of this seminar.

If a party is unhappy with the support order proposed by the conference officer, he can request a hearing before a master.  While a support master is not a judge, he is like a judge in that he holds a hearing that resembles a court hearing, and receives testimony and evidence as a judge would.  It is at a master’s hearing that traditional court advocacy can occur.  A master’s hearing can include the testimony, examination, and cross-examination of witnesses (including experts if necessary), the presentation of documents and evidence, and arguments.  Upon reviewing all of the evidence and testimony presented at the hearing, the support master issues a support order.  The support master’s order becomes a final order in support unless, by the procedural deadline, one party files exceptions to that order.  The exceptions function like an appeal and are heard by a judge.  The judge does not hold a de novo support hearing to resolve the exceptions.  Rather, the judge hears oral arguments as to whether the support master committed an error of law and/or fact.  If the master did commit an error, the judge may enter a new support order taking the error into account, or simply remand the matter back to the master for a new hearing in order to remedy the errors at the prior master’s hearing.

The date a support order (of any kind) takes effect is the date one files for it.  So, for example, if someone files for child support on October 1, 2019, but an order is not entered until December 1, 2019, then an obligor begins his support obligation two months in arrears on December 1, 2019.  Now, this is not something to worry about and is a standard part of most support orders, and typically an “arrears provision” is included in a support order, which amounts to about an additional 10% of the monthly support being added on to the support order to pay down the arrears.

  • Modification of a Child Support Order

 Once established, a support order is a fully enforcable order; however, it is also an order that may be modified upon request of either party.  The procedure to pursue the modification of a support order is nearly identical to securing the original order (with exception of having to show a change in circumstances as noted below).  Instead of filing a Complaint for Child Support, the party seeking modification files a Petition to Modify a Child Support Order instead.  As with the establishment of a child support order, the parties must ensure the court is presented with accurate incomes and expenses for both parties based upon which a modified support order may be entered.

A modification of support will only be ordered if the person seeking the modification can demonstrate that there has been a change in circumstances since the most recent support order was entered.  Changes in circumstances can include: a change in employment status, a change in jobs, establishing a new cohabitating relationship, the birth of a new child, changes to health insurance coverage, and/or changes to extracurricular activities for the children, among other things.  If a party is trying to resist modification, attempting to demonstrate that there has been no change in circumstance is, if successful, a viable way to accomplish that goal.

  • Discovery

 Standard discovery is only permitted in a child support case in certain circumstances.  Every child support case is subject to an order of self-executing discovery.  Essentially, the order to appear for a child support conference and/or hearing is accompanied by a corresponding order for each party to bring evidence of income and relevant expenses.  Typically, self-executing discovery requires the parties to furnish their last six (6) months’ worth of paystubs, their most recent tax return and/or W-2 and/or 1099, receipts of out-of-pocket expenses for the child(ren) subject to the order (e.g.: extracurricular activities, tuition, camp, etc), health insurance coverage for the child(ren) subject to the order, and a completed income/expense sheet.

There are cases where a party is self-employed and/or does contract work and/or is a business owner.  In those cases, the opposing party may file to have the case marked “complex” which gives permission to the parties to conduct traditional discovery (e.g.: interrogatories, requests for production,etc).  Finally, a party may file for leave of court to conduct discovery upon a showing of some sort of unusual circumstance that warrants it.  Of course, a Court is free to grant or deny the request for leave.

  • Calculation of Child Support

 The calculation of a child support order is according to an established guideline table as provided in Pennsylvania law (see Pa. R.C.P. 1910.16-3).  When calculating a support order, the Court bases it on a determination of each party’s net income.  Net income, in the context of child support, is a party’s gross income from any source, reduced by taxes, non-voluntary retirement deductions, and union dues.  Net income is typically discerned from pay stubs and tax information; however, in “complex” cases, net income can also be derived from bank statements, business records, receipts, and other sources.

Sometimes a party’s income is, for one reason or another, lower than it could or even “should” be based on his/her experience and eduction level.  In that case, a Court will determine what the party’s “earning capacity” is and enter an order based on that as opposed to actual income.

Earning capacity is a legal determination made by a court which establishes what a party “should” be able to earn.  When determining earning capacity, factors like work history, prior income levels, and level of education are considered.  It is important to note that the court will not simply use the highest income one had and determine that to be “earning capacity.”  The court typically takes a much more pragmatic approach.  For example, if someone worked at “Employer A” ten (10) years ago making $80,000/yr but, for the last nine (9) years has worked for “Employer B” making $60,000/yr, it is unlikely the court will go back to “Employer A” to determine capacity because a work history, and a relative adjustment of lifestyle, has been shown to have occurred over the last nine (9) years.  In other words, the most recent employment is most likely to be considered a good measure of earning capacity unless it is shown that this employment was secured as way to facilitate voluntary impoverishment.  If it can be shown that an obligor (the person who pays support) engaged in voluntary impoverishment, the support obligation will be calculated according to the obligor’s assessed earning capacity and not actual income.

There are times when someone does voluntarily “impoverish” oneself and it does not qualify as voluntary impoverishment as described above.  Pursuant to Pa.R.C.P. 1910.16-2(d)(1), there is a general principle that virtually no voluntary reduction of income will result in a reduction in support, but that very same rule leaves open a possibility with its use of the word “generally” (“[w]hen either party voluntarily … [reduces his income] … there generally will be no effect on the support obligation.”).  The key element is whether the reduction of income was for the purpose of circumventing a support order (as opposed to, for example, to pursue greater education or training, or to take a job with better hours, or quitting one’s job due to an infirm parent in need of care, and so forth).  Now it hardly needs to be said that determining the motive for a reducing one’s income is extremely fact intensive, and one must be prepared to prove that motive in court.  It probably goes without saying that being laid off, or suffering an injury, or what-have-you, against one’s will does not amount to voluntary impoverishment.

Once net income is determined for each party, it is added together in order to calculate the total parental income.  The guideline table mentioned above contains a list of net parental incomes ranging from $1,000/mo to $30,000/mo in increments of $50.00 on which the income of the typical set parents can be found.  Across from the parental net income is the amount of support, as determined by state law, appropriate for the number of children a set of parents have.  This figure is the baseline amount of support for the child(ren) at issue in a particular case.  Once the baseline support amount is determined, the amount an obligor must pay is calculated as follows:

  • obligor’s income divided by total parental income totals the obligor’s proportion of parental income;
  • the obligor’s proportion of parental income is then multiplied by the base support amount per the guidelines.

By way of example, say that a father earns $1,500 per month in net income and a mother earns $500 per month in net income, for a total parental net income of $2,000 to calculate support for their three children.  The father in this scenario earns 75% of the parental income.  According to the Pennsylvania child support guidelines, $2,000/mo in net income results in $805/mo in baseline support for three children.  Therefore, based on the numbers above, the father’s child support for his three children is 75% of $805/mo, which amounts to $603.75/mo in child support.

There are times when the Court may deviate from the guidelines.  Deviation is sometimes warranted in unusual or extraordinary circumstances where the guidelines do not adequately or practically address a case’s particular circumstances.  For example, a child may have his own source of income (through, say, an inheritance or a law suit or a government benefit), or the other party may be the beneficiary of a huge inheritance or is married and/or cohabitating with someone who earns a substantial income.  There are other times when an obligor, for example, is caring for an infirm parent and has to dedicate substantial time and money to that.  For situations such as these, and others, it may be warranted to deviate from the guidelines to account for these unusual issues.

It is important to note that party’s (usually an obligor) expenses are rarely a cause to deviate from the guidelines or seek a reduction in support.  It is expected that child support will be the priority in one’s monthly budget of expenses, and all other expenses will be subservient to it.  So, for example, if one chooses to purchase an expensive car or have an expensive cable or telephone bill, one cannot ask the Court to reduce child support so that one can meet his expenses.  It will be expected that he will reduce these other expenses in order to free up his money to pay child support.

On top of the basic guideline support amount, noted above, most support orders have a so-called “arrears provision” that is included in a support order, which often amounts to about an additional 10% of the monthly support being added on to the support order to pay down any arrears that may accumulate.

Federal law requires child support orders to address health insurance.  .All children should be covered by health insurance, and many children are involved in extra-curricular activities, camp, day care, and the like.  In child support cases, where family health insurance is available to one or both parties through their employment at a reasonable cost, the court will require one of the parties to provide insurance for the children at the most reasonable cost.  If such insurance is only available to one party through their employment, that party will be the one required to provide the insurance coverage for the children.  If health insurance is available to both parties through their employment, then the court will look at a variety of factors to determine which party should be responsible for providing the insurance coverage, including who currently provides insurance for the children, the benefits available under each plan, and the additional costs to insure the children under each plan.  In child support actions where medical coverage is not available through either party’s employer, the court may require the primary custodial parent to apply for government-sponsored coverage, such as Pennsylvania’s Children’s Health Insurance Program (“CHIP”).

In terms of how health insurance premiums affect child support, Pa.R.C.P. 1910.16-6(b)(1) states:  “(i) if the party paying the health insurance premium is the obligor, the obligee’s share is deducted from the obligor’s basic support amount. (ii) If the obligee is paying the health insurance premium, the obligor’s share is added to his or her basic support amount.”

In child support cases, the party that is receiving child support pays the first $250 in unreimbursed expenses per child.  Any medical expenses above the first $250 are split in proportion to the parties’ incomes as compared to the joint parental income.  The obligee will have to keep track of the expenses each year, and then submit them to the other party.

The costs for other expenses, such as camp, day care, tuition, and extra-curricular activities, are also split in proportion to the parties’ incomes as compared to the joint parental income.  Of course, this assumes that these other items are agreed upon by both parents or, at the very least, not actively opposed by one.

Although, per the guidelines, one my be entitled to more child support, Pennsylvania law has an upper limit of 50% of one’s disposable earnings as the maximum amount one’s earnings can be garnished for child support if one is also currently supporting a spouse or a child who is not the subject of the order.  If one is not supporting a spouse or child from another order, up to 60% of one’s earnings may be garnished for support.

If one earns $981/mo or less, the one is considered destitute and will not have a child support obligation applied to him/her.

While there is an upper limit to the parental income on the guidelines, there are some fortunate people whose earnings exceed this threshold.  Child support cases with earnings that go beyond the upper threshold of the guidelines are calculated thusly:

Pa.R.C.P. 1910.16-3.1.

(a)  Child Support Formula. If the parties’ combined monthly net income exceeds $30,000, the following three-step process shall be applied to calculate the parties’ respective child support obligations. The support amount calculated pursuant to this three-step process shall not be less than the support amount that would have been awarded if the parties’ combined monthly net income was $30,000. The calculated amount is the presumptive minimum support amount.

(1)  The following formula shall be applied as a preliminary analysis in calculating the basic child support amount apportioned between the parties according to their respective monthly net incomes:

  • One child: $2,839 + 8.6% of combined monthly net income above $30,000.
  • Two children: $3,902 + 11.8% of combined monthly net income above $30,000.
  • Three children: $4,365 + 12.9% of combined monthly net income above $30,000.
  • Four children: $4,824 + 14.6% of combined monthly net income above $30,000.
  • Five children: $5,306 + 16.1% of combined monthly net income above $30,000.
  • Six children: $5,768 + 17.5% of combined monthly net income above $30,000;

(2)  The trier-of-fact shall apply the formulas in Pa.R.C.P. No. 1910.16-4(a)(1)(Part D) and (Part E) or (2)(Part II) and (Part III), adjusting for substantial or shared custody pursuant to Pa.R.C.P. No. 1910.16-4(c) and allocating additional expenses pursuant to Pa.R.C.P. No. 1910.16-6, as appropriate;

(3)  The trier-of-fact shall consider the factors in Pa.R.C.P. No. 1910.16-5 in making a final child support award and shall make findings of fact on the record or in writing. After considering the factors in Pa.R.C.P. No. 1910.16-5, the trier-of-fact may adjust the amount calculated pursuant to subdivisions (1) and (2), subject to the presumptive minimum.

(b)  Spousal Support and Alimony Pendente Lite. In cases in which the parties’ combined monthly net income exceeds $30,000, the trier-of-fact shall apply the formula in either Pa.R.C.P. No. 1910.16-4(a)(1)(Part B) or (2)(Part IV) as a preliminary analysis in calculating spousal support or alimony pendente lite. In determining the final spousal support or alimony pendente lite amount and duration, the trier-of-fact shall consider the factors in Pa.R.C.P. No. 1910.16-5 and shall make findings of fact on the record or in writing.

  • Enforcement

 Enforcement of support is rather straight forward.  The vast majority of support cases are enforced through the garnishment of wages/salary.  Garnishment is preferred by the law, but it is also preferred by most people in support cases, obligee and obligor alike.  Obligees prefer it as their support payments are not dependent upon the actions of the obligor.  As one may expect, sometimes an obligor may forget, or intentionally withhold payment, or need to pay it late, and so on, and obligees do well to avoid these vagaries.  A garnishment order makes the payment of support absolutely priority over all other non-tax obligations, and avoids the temptation for an obligor to prioritize other bills over his support obligation.  While garnishment is preferred, there are cases where it is not preferred or impossible to do, in which case the obligor must remit monthly payments to the Pennsylvania State Collection and Disbursement Unit in Harrisburg for it to distribute to the obligee.

The other typical method of enforcing a delinquent support order is through contempt actions for non-payment.  Contempt is, generally defined, as a willful defiance of a court order or a willful failure to comply with the terms of a court order.  Enforcement of support tends to be straight forward because the various aspects of a support case are fairly obvious and easily definable.  The obligor has an obligation to remit a certain amount of funds to the obligee at clearly laid out intervals (typically monthly).  Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court.  If an obligor fails to fulfill his obligation under a support order, the obligee can file a motion for contempt and request sanctions and enforcement.  Contempt in the context of support is typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.

Contempt in a support matter carries with it two aspects one ought to keep in mind when considering pursuing a support action.  The first is a consideration of the obligor’s ability to perform the support order.  For one reason or another, a party in a support case is not always a as vigilant as he could be in filing for the modification of a support order.  So, for example, an obligor who loses his job (and neglects to modify his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation.  This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support.  The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability.  There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration.  While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished.  It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.

If someone’s arrears amount to $500 or more, the Internal Revenue Service (“I.R.S.”) will deduct it from whatever tax refund the obligor is entitled to receive in what is called an “intercept.”

  • Termination of a Support Order

 When a typical support case terminates is fairly clear.  When the child turns eighteen (18) or graduates from high school (whichever is later) will be the date it terminates (unless the parties have agreed in writing to another date after age eighteen (18)).

Typically, when the eighteenth birthday of a child subject to a support order nears, the court will issue a letter inquiring as to when the child will emancipate (i.e.: turn eighteen (18) or graduate from high school).  The obligee is to respond to this letter and confirm the termination of the support order upon emancipation.  Unfortunately, courts tend to be overburdened (and do not send the letter in a timely fashion) and/or obligees uncooperative (and do not respond to the letter), as a result it is wise for obligors to file a Petition to Terminate support.  This should be filed sufficiently before the emancipation date in order to avoid an over payment.  At a hearing for a Petition to Terminate, the obligor must demonstrate that the child for whom support is being paid has been (or will be) emancipated.

There are cases where support can extend beyond traditional emancipation.  One way it can last beyond traditional emancipation is if there is an agreement between the parties to do that.  Another way is to demonstrate that the child for which support is being sought is disabled in some way which causes him to be unable to sustain himself as an adult.  In order to demonstrate disability, the obligee must present evidence from physicians and/or a mental health professional (and the like) to prove that the adult child needs continued support due to a disability.

Finally, it should be noted that even though a support order is “terminated,” all that means is that the accrual of the order stops.  The obligor will continue to be responsible for any arrearage after termination of the order, and the arrears will remain as a debt owed by the obligor until it is fully satisfied, even if that is long after the order is terminated.

  • Spousal Maintenance

 Maintenance is a colloquial term that typically refers to spousal support (“SS”) and/or alimony pendente lite (“APL”) and/or alimony.  While SS and APL greatly resemble one another, they do have some distinctions.

SS is the support one spouse is obliged to provide the other one if the other one is unable to be self-supporting.  SS can be awarded without an underlying divorce matter as long as, generally speaking, the estranged spouses do not live together.  By contrast, APL is support provided by one spouse to the other, who is unable to be self-supporting, during the pendency of a divorce matter, as long as, generally speaking, the estranged spouses do not live together.

Both APL and SS are calculated using the same formula.  The payment will amount to 40% of the difference of the parties’ incomes (or 30% if the SS/APL obligor is already paying the obligee child support).

Many people seem to approach SS/APL as a simple issue of determining which spouse has greater income/assets and, as a result, obtaining an order requiring that spouse to remit funds to the other.  While many cases can be that simple, they do not, and often are not, have to be quite that simple.  Merely having a lower income or fewer assets does not automatically entitle one to SS/APL; the analysis is a little more complex than that.

In order to receive SS or APL one must prove the assertions made in the typical petition for the same, which generally includes:

  • that the obligee cannot support himself (and/or cannot support himself during the course of the litigation);
  • that the obligee lacks sufficient property to meet reasonable needs and expenses;
  • that the obligee cannot support himself through appropriate employment;
  • that the obligee cannot afford necessary and reasonable attorneys’ fees for the underlying case.

As one can see, the focus of the assertions made revolve around the obligee’s ability to pay for and/or afford his reasonable needs and requires the other spouse to help subsidize those needs.

The concepts of “reasonable needs” and “supporting oneself” are vague on specifics and can differ widely depending on the person.  Some people may think a Spartan lifestyle is reasonable while others think having some luxury in one’s life is not unreasonable.  When discerning what needs are (un)reasonable and whether one can be self-supporting, the first place to look would be the established marital lifestyle as a general guideline.  The needs and expenses present in one’s life, which were funded as and by a couple, do not suddenly disappear when that couple separates.  Furthermore, the cost to pay for a married couple’s decision to buy a car or a house (of whatever value), for example, does not suddenly become unreasonably expensive when that couple separates.  To put it simply: the marital bills need to get paid.  Maintaining something similar to a marital lifestyle over the course of the divorce is something which SS/APL strives toward.

Although SS/APL is/are to help maintain reasonable needs and/or helping someone unable to support himself, this does not mean that the potential obligee is without financial responsibility, nor does it mean that one should (or even could) be immune from the negative financial effects that divorce (or separation) inevitably brings.  The focus is on what is “reasonable.”

In order to receive SS/APL one has to demonstrate an actual need for the money.  As a result, a look at the assets and income of the person seeking SS/APL is fair game when determining whether SS/APL is appropriate.  The goal is to help maintain a standard of living that is reasonably consistent with the standard established during the marriage and if the obligee can do that without any money from a potential obligor, then SS/APL may not be warranted.  Any financial discomfort caused by the separation can be remedied through the distribution of the marital assets in divorce.

Of course, the greater the disparity of assets and income is between the parties, the greater the likelihood SS/APL will be awarded as the ability for the potential obligee to maintain a marital standard of living becomes increasingly unlikely as that disparity widens.

There are other defenses to SS/APL other than arguments surrounding the concepts of “reasonable” and/or what it means to support oneself; by contrast, these other defenses are much more straight forward, though what they lack in legal complexity, they more than make up for in a potential for emotionality.

The first defense is that the parties were never married.  Only married people can collect SS or APL.  This is an obvious defense, perhaps, but there are still some people who can claim a common law marriage and/or seek annulments, and this defense would apply to those cases.

The other defense is to raise an old fashioned “fault” argument (it must be stressed that this is only a defense to SS and not APL).  Although rather uncommon in post-modern America, the law still allows for a traditional old fashioned divorce based on marital fault (23 Pa.C.S.A. §3301(a)).  The typical marital faults include adultery, abuse, and abandonment, among others.  If it can be proved that a potential obligee committed one of these faults, then it will disqualify him from receiving SS.

  • Support Miscellany

 These issues are included here as they did not have a natural or logical home in the materials above.

  • Child Support Cannot be Bargained Away

As with any sort of Court case, it is not uncommon for the parties to a support case to seek an agreed resolution as opposed to seeking an order from a Court after a hearing; however, a child support case as limitations to how much leeway or freedom a party has to enter into an agreement.

Pennsylvania Courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania Courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the Court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).

Despite the above, however, the Courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the Court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.

Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The Court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.

  • Who pays and who collects child support?

For the vast majority of cases, the primarily custodial biological parent is entitled to support while the partial custodial biological parent is obliged to pay it.  Adoptive parents, and step-parents and/or anyone else who assumes an in loco parentis role, are treated just like their biological parents counterparts in terms of entitlement and obligation.

There are very rare cases when a primary custodial parent pays child support to a partial custodial parent, but this is only when the income/wealth disparity between the two (with the partial custodian having less wealth than the primary) is so tremendously great that it would be against the best interests of the child(ren) to make the partial custodian become even more comparatively impoverished while the primary custodian amasses even more wealth.

Of course, if the parties both live in the same house and the person from whom support is sought pays the household expenses, no order will be entered.

NBI Seminar: Family Law From A to Z – Roundup

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Listed below is the complete list of the materials I wrote for my portions which can be read here on this blog.

Thanks!

__________

NBI Seminar: Ethics

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”

Thanks!

__________

 Client/Lawyer Relationship

The client/lawyer relationship in a family case is unlike that relationship in any other case.  A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life.  A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these.  When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life.  As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.

There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case.  Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider.  For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value.  Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse.  Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).

Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues.  A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms.  The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items.  Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.

Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation.  Understandably, clients become extremely emotional when dealing with the custody of their children.  Sometimes clients simply cannot accept that the other parent has entered into a new relationship.  Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have.  Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent.  It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view.  The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client.  It often takes more than mere legal analysis to help a client recognize what is best for his children.

Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes.  A child will take with him for the rest of his life how his parents interacted with him and with one another.  Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely.  So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.

Attendance at Client Conferences by Friends or Family of Client

The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies.  Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality.  Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.

As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?

As a threshold matter, the client must grant permission for anyone to be present at any conference.  The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege.  The other factors listed above are tactical in nature.  Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting.  Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence.  Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child.  The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves.  As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.

Finally, a person who finds himself in a custody case is often in a compromised position in his life.  In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child.  Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support.  While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties.  It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren.  An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants.  Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.

Attorneys’ Fees

An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client.  This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.

The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client.  Obviously there are no contingency in custody matters either.

Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.

Communication With Adverse Party

Communication with an adverse party, if represented, is like any other sort of case.  Communication ought to be timely, civil, and professional.  When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues.  While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests).  As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.

Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party.  It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party.  A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters.  It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client.  So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney.  The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment.  Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client.  Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.

Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed.  As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.

Malpractice Concerns

Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board.  All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct.  The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.

When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board.  Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline.  As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.

The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation.  This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.

In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.

The potential discipline an attorney could receive is either private or public.  Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment.  A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management.  A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.

A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline.  Public discipline is typically imposed after a hearing.  Public discipline can only be imposed by the Supreme Court of Pennsylvania.  If an attorney is disbarred, the attorney cannot practice law at all in any way.  A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar.  Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential.  Another public discipline is suspension.  While suspended, an attorney cannot practice law.  Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply.  Finally, an attorney may be publicly censured.

The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.

As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision.  Instead, the Counsel allows for an internal review process which can be requested by a Complainant.  If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.

It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.

NBI Seminar: UCCJEA: Uniform Child Custody and Enforcement Act

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”

Thanks!

__________

Parents and children are more mobile than ever.  It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order.  The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case.  The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).

The UCCJEA is divided into four basic parts.  The first part consists of the general provisions (e.g.: definitions).  The second part deals with jurisdiction.  Part three regards enforcing out-of-state custody orders.  Finally, the fourth part contains miscellaneous provisions.

The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.

Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue.  The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth).  If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.”  Mere physical presence, however, is not required or sufficient to make a custody determination.  Standard notice requirements apply to cases under UCCJEA.  If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed.  A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”

Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child.  When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication.  A record of this communication, regardless of the participation of the parties, must be created and kept.  As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.

A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum.  In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;  and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.

Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change.  The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.

An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware.  The father remains in Pennsylvania.  The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there.  At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.:  Pennsylvania).  In response, the mother attempts to transfer jurisdiction of the case to Delaware.  The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.

An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months.  Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey.  As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order.  Instead, the state where the children reside with at least one parent would likely have jurisdiction.

Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) .  Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice.  Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order.  The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties.  The petition requires representations as to jurisdiction.  A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”)  A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party.  Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction.  If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party.  The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.

Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection.  Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection).  Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction.  The emergency order will remain in effect unless and until the “home state” enters a custody order.  If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect.  Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.

NBI Seminar: The Rights of Grandparents and Other Relatives

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “The Rights of Grandparents and Other Relatives.”

Thanks!

__________

Grandparents’ (and other relatives) rights to have custody of children is governed by 23 Pa.C.S.A. §5324 which states as follows:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:

(1) A parent of the child.

(2) A person who stands in loco parentis to the child.

(3) A grandparent of the child who is not in loco parentis to the child:

(i) whose relationship with the child began either with the consent of a parent of

the child or under a court order;

(ii) who assumes or is willing to assume responsibility for the child; and

(iii) when one of the following conditions is met:

(A) the child has been determined to be a dependent child under 42 Pa.C.

S.Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or

alcohol abuse or incapacity; or

(C) the child has, for a period of at least 12 consecutive months, resided

with the grandparent, excluding brief temporary absences of the child from

the home, and is removed from the home by the parents, in which case the

action must be filed within six months after the removal of the child from

the home.

 

23 Pa.C.S.A. §5325 supplements §5324 and states the following:

In addition to situations set forth in §5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2) [Unconstitutional]

(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after he removal of the child from the home.

Failure to secure standing serves to bar grandparents from pursing the custody of the child-at-issue.  If they do have standing, grandparents may file for custody like a parent can, however, when litigating against a parent, the scales are always tipped heavily toward the biological parent and away from the grandparent.  Of course, the best interests of the child are always paramount.  When two parents are litigating against one another, the burden of proof is shared equally, however when the case is between a biological parent and a third party (e.g.: a grandparent), the burden of proof is not equally balanced.  In this case, the biological parent has a prima facie right to custody which can only be forfeited only if “convincing reasons” appear that the best interests of the child are better met by the third party.

Resources:

  • 23 Pa.C.S.A. §5324
  • 23 Pa.C.S.A. §5325
  • Jordan v. Jackson, 876 A.2d 443 (Pa.Super.2005)
  • K.B. v. C.B.F., 833 A.2d 767 (Pa.Super.2003)

NBI Seminar: Child Custody and Visitation Rights: Termination of Parental Rights

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Termination of Parental Rights.”

Thanks!

__________

The termination of a parent’s rights over his children nearly always occurs in one of two circumstances: voluntary adoption and dependency.

When termination is an issue, the court must appoint an attorney to represent the child when one or both parents contest the termination.  Of course, the court is always free to appoint counsel and/or guardian ad litem for the child.  A lawyer may not represent both the child and one of the parents.  As far as the parents facing possible parental termination are concerned, the court may, upon petition, also appoint an attorney for one or both of them in the event he or she is unable to pay for an attorney.

There are times when parents are willing to voluntarily terminate their rights to their children, typically called relinquishment, say in the context of adoption.  Another option, besides relinquishment, is signing a consent. A parent can sign a consent for their child to be adopted and not have to appear at future hearings.  23 Pa.C.S. § 2504.  Upon receipt of a petition to relinquish parental rights, as mentioned above, a hearing will be scheduled, at least ten days from the filing of the petition, in order for the court to review and rule upon the petition.  Relinquishment is under 23 Pa.C.S. § 2501-2502 and requires a hearing wherein a judge should make sure the parent understands the consequences of relinquishment and is fully aware of his right to trial.  Usually there is a colloquy by the judge or by the parent’s attorney to establish their understanding.

It should be noted that if there is a putative father, which is to say a man who has not been formally legally established to be a child’s father, he may have his rights terminated if he had not filed an acknowledgment of paternity or a claim for paternity and fails to appear at the termination hearing.

Perhaps one of the most compassionate sections of the applicable law toward the parents subject termination is the fact that the court has the obligation to inquire into whether those parents have received counseling.  If not, the court can refer him or her to a qualified counselor.  In the alternative, a parent subject to termination may apply for a referral to counseling as well.  To help facilitate counseling, the state has established a counseling fund pursuant to 23 Pa.C.S.A. §2505(e) to help those who are not in a financial position to afford counseling on their own.

Of course, termination of parental rights is a critical element of adoption and dependency.  Termination in the context of adoption is pursuant to 23 Pa.C.S.A. §2511.  In order to petition to terminate in this context, the parent must (1) evidence a “settled purpose of relinquishing [a] parental claim” over a child or fail to perform parental duties for a period of six (6) months immediately prior to filing to terminate; or, (2) demonstrate repeated abuse or neglect or continued incapacity; or, (3) the parent is the presumptive but not natural father of the child; or, (4) the child is in the custody of an agency and the parent is unknown (and does not claim the child within three months after being found); or, (5) the child has been removed from the care of the parent by court or voluntary agreement for a period of at least six months and the circumstances which led to the removal still persist with no reasonable expectation to improve; or, (6) a newborn child where the parent knows (or should know) of the child but takes no action to be a parent (e.g.: reside with the child or marry the other parent) for a four month period; or, (7) the parent is a father of a child conceived through rape; or, (8) the parent has been convicted of a serious crime (as listed in the statute); or, (9) the parent has committed sexual abuse or is a registered sex offender,

If a parent exhibits no sign of interest in the child over an extended period – typically about six months – he will be at risk of termination.  The Court has made it clear that a child is not an “unwanted toy” for a parent to pick up and play with at his whim and set it down again when tired of it.  Relatedly, being the fun and occasional playmate is not the same as being an involved parent.  Additionally, parental involvement is more than merely paying support or paying for various expenses.  A parent is more than a benefactor.  Interestingly, absence due to incarceration does not necessarily provide sufficient grounds for termination.  Of course, the six month interval is not mechanically applied.  The Court is to fully analyze the underlying matter to determine why there has been such extended absence, and to view the totality of circumstances before ordering termination.

Those who may petition to terminate another person’s parental rights are limited to (1) either parent; (2) an agency; (3) the person who has custody and standing as in loco parentis and has filed a report of intention to adopt; and/or (4) a guardian ad litem of a dependent child.

The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the grounds listed in 23 Pa.C.S.A. §2511.  If the aforesaid evidentiary standard is met, then the court may consider whether the termination is for the best interests of the child.  As with virtually any other issue regarding the custody or placement of children, the best interests of the child are paramount.  The court is to give primary consideration to the developmental, physical, and/or emotional needs and welfare of the child.  See 23 Pa.C.S.A. § 2511(b)  The statute is clear that issues surrounding environmental factors will not be the sole basis of termination.  Environmental factors include housing, furnishings, income, clothing, medical care, and the like if they are beyond the control of the parent.  Finally, if a parent attempts to remedy the issues and conditions provoking the termination petition after the petition is filed, the court will likely not consider them.  See 23 Pa.C.S.A. §2511(b)

After the filing of a petition for termination, a hearing is held with at least ten days’ notice to the parents, putative father, and parent of a minor parent who has not been terminated.  Following termination, the terminated parent may not object to any adoption proceeding for the child.  Terminated parents nearly always have the right to file updates of his or her personal medical history information after termination.

Resources:

  • 23 Pa.C.S.A. §2313
  • 23 Pa.C.S.A. §2501
  • 23 Pa.C.S.A. §2502
  • 23 Pa.C.S.A. §2503
  • 23 Pa.C.S.A. §2505
  • 23 Pa.C.S.A. §2511
  • 23 Pa.C.S.A. §2512
  • 23 Pa.C.S.A. §2513
  • 23 Pa.C.S.A. §2521
  • In Re L.M., 923 A.2d 505 (Pa.Super. 2007)
  • Baby Boy A. v. Catholic Social Services, 517 A.2d 1244 (Pa.1986)
  • v. Arnold, 665 A.2d 836 (Pa.Super.1995)
  • In re Burns, 474 P. 615 (1977)
  • In re C.S., 761 A.2d 1197 (Pa.Super.2000)
  • In re J.L.C., 837 A.2d 124 (Pa.Super.2003)
  • In re T.F., 847 A.2d 738 (Pa.Super.2004)
  • In re K.K.R.-S., K.M.R. & K.A.R., 958 A.2d 529 (Pa.Super.2008)

NBI Seminar: Child Custody and Visitation Rights: Questions of Paternity

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Questions of Paternity.”

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

C.     Questions of Paternity

Historically the law regarding children born out-of-wedlock (i.e.: so-called “bastards”) was different than that regarding a child born into a family, which disadvantaged and stigmatized them.  Now, however, by contrast, parents, no matter the circumstances of the birth of their children, all have equal rights under the law.  The establishment of paternity entitles the person who is awarded it to custodial rights over the child-at-issue.

There are six ways in which paternity can be established: (1) voluntary acknowledgment; (2) stipulation to be bound to the results of a genetic test; (3) estoppel; (4) presumption; (5) hearing/trial; and, (6) failing to appear for testing, trial, and/or hearing for paternity.  An action to determine paternity for a child born out of wedlock may be commenced at any time until the child turns eighteen years old.

A child born into a marriage is presumed to be the child of the father in that marriage and this presumption is typically only rebutted through showing impotence or the impossibility of sexual access.  23 Pa.C.S.A. §5104(g).  In situations when a child is born out-of-wedlock, paternity may be determined by (1) the parents eventually marrying and/or (2) through clear and convincing evidence that the purported father has provided financial support and/or received the child into his home and has held the child out as his, and/or (3) clear and convincing evidence of actual paternity (e.g. positive paternity testing which is prima facia evidence of paternity).  The presumption of paternity in the context of marriage is for the purpose of preserving stable family units for the children within them.

Of course, a putative father may also acknowledge paternity in a verified writing.  This is often done at a child support conference/hearing where a man submits to a support order for a child he acknowledges as his own.  If a man appears at a support hearing but refuses to acknowledge paternity, the court is to enter an order directing the parties to appear for genetic testing.  Perhaps obviously, the mother is, by statute (23 Pa.C.S.A. §2513(c)) considered to be a competent witness to paternity.  The putative father may contest the results of the genetic testing, but, to do so, he must marshal clear and convincing evidence that the test is somehow not reliable.  If the test itself is not conclusive (i.e.: results in less than 99% probability), the court will schedule the matter for trial.

Estoppel occurs when a man holds a child out as his own regardless of biological relationship.  It could also occur when a woman holds him out as the father despite biological relationship.  Estoppel, basically, is the prohibition of denying paternity after holding a child out as one’s own, regardless of his relation to the child.  Estoppel, at its essence, is designed to prevent putative fathers from denying parentage at some point in the future.  “Hold out as his own” is typically evidenced by spending time with the child, living with the child, the child bearing the man’s name, the child calling him “dad,” the man representing to others he is the father, and so on.  In situations such as this, this man will be estopped from denying paternity and genetic testing may not be admitted to contradict paternity.  Relatedly, if a man other than the apparent father denies paternity, a mother may not pursue genetic testing on the alleged father due to the presence of the apparent father.  Again, similar to the presumption from a marriage, it is believed permanency is in the best interests of the child.  Furthermore, estoppel is most often applied in situations where a man has held himself out as a child’s father only to try and deny paternity when/if child support is ordered at some point in the future.  As estoppel often relies upon timing (e.g.: failing to move immediately for genetic testing upon learning of a claim of paternity) the Pennsylvania Superior Court observed that the law is starting to soften on its application and stated “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.”  T.E.D. v. C.A.B. v. P.D.K., Jr., 74 A.3d 170 (Pa.Super.2013).

There are times, of course, when more than one man claims to be the father of a child.  The Pennsylvania Supreme Court has ruled on who may request a paternity test and/or challenge paternity and/or be denied the right to seek paternity.  In the matter of Brinkley v. King, 549 Pa. 241 (1997) the Supreme Court, through a plurality opinion, laid out the required analysis to determine the paternity of a child conceived or born during a marriage.  First, one must determine whether the marriage presumption of paternity applies and, if so, whether it has been rebutted.  Second, if the presumption has been rebutted, one must then determine if estoppel applies to bar either a plaintiff from making a claim or a defendant from denying paternity.

The underlying principle of the presumption is the preservation of marriage, in other words, the protection of an intact family.  If the presumption does not apply one must then determine whether the man seeking paternity is estopped from attempting to strip another man’s claim to paternity of a child born during marriage and/or held out as his own.  It should be noted that one’s delay or inactivity in seeking paternity may bar him from doing so.  Again, best interests – in this instance the stability of a child’s life – is paramount.

Of course, there are times when fraud is claimed regarding paternity and, if demonstrated, the argument of estoppel could be precluded.  In order to successfully argue fraud, a party must demonstrate: (1) a misrepresentation; (2) a fraudulent utterance; (3) intention to induce action by the recipient; (4) justifiable reliance on the utterance; and, (5) damages.

Resources:

  • R.C.P. 1910.15
  • 23 Pa.C.S.A. §2313
  • 23 Pa.C.S.A. §2502
  • 23 Pa.C.S.A. §2513
  • 23 Pa.C.S.A. §4343
  • 23 Pa.C.S.A. §5102
  • 23 Pa.C.S.A. §5103
  • 23 Pa.C.S.A. §5104
  • Rosado v. Diaz, 425 Pa.Super. 155 (1993)
  • Liebner v. Simcox, 834 A.2d 606 (Pa.Super.2003)
  • Karner v. McMahon, 640 A.2d 926 (1994)
  • John M. v. Paul T., 524 Pa. 306 (1990)
  • Freeman v. McCandless, 539 Pa. 584 (1995)
  • Buccieri v. Campagna, 889 A.2d 1220 (Pa.Super.2005)
  • Conroy v. Rosenwald, 940 A.2d 409 (Pa.Super.2007)
  • Warfield v. Warfield, 815 A.2d 1073 (Pa.Super.2003)
  • Hamilton v. Hamilton, 795 A.2d 403 (Pa.Super.2002)
  • Gebler v. Gatti, 895 A.2d 1 (Pa.Super.2006)
  • O. v. C.O., 404 Pa.Super. 127 (1991)

NBI Seminar: Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: Motion for a Change of Custody or Visitation.”

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

B.   Motion for a Change of Custody or Visitation

A party to a custody order has a right to seek its modification.  Contrary to popular belief, one does not need to allege that there has been a change in circumstances in order to seek, or have, a modification of a custody order.  The form and process of drafting and filing a petition to modify custody is substantially the same as a complaint for custody and the series of hearings which follow are also the same.

            There are instances where an attorney files something entitled a complaint (or petition) to “Confirm Custody.”  It does not appear that such a filing is derived from an actual procedural category or practice.  Instead, it merely appears to be a standard complaint or petition for custody given a different title for, apparently, the sole purpose of giving the filer some sort of rhetorical capital or high ground, as “confirming custody” implies that person is already entitled to custody and is merely filing to “confirm” it.  Alternatively, it is sometimes used in situations where there is already an existing “informal” custody arrangement (i.e.: without a court order), and the person filing merely wishes to “confirm” that custody arrangement in a court order.  This merely appears to be a stylistic preference, and not based on any law or procedure, and, therefore, has no practical effect on a custody matter.

 

 

NBI Seminar: Child Custody and Visitation Rights: A Petition for Visitation and/or Custody

As I have posted recently (see here), I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics.  I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Child Custody and Visitation Rights: A Petition for Visitation and/or Custody.”

Thanks!

__________

CHILD CUSTODY AND VISITATION RIGHTS

  1. A. Petition for Visitation and/or Custody

Like nearly any other court case, all custody actions – regardless of how much custody is being sought (e.g.: primary, partial, or visitation, etc) – begin with the filing a complaint.  The Pennsylvania Rules of Civil Procedure provide for a standard form for a complaint, which can be found in Pa.R.C.P. Rule 1915.15 and 1915.16.

The various county courts in the Philadelphia area offer forms for custody complaints, and they can be found at the following websites:

 

  • Elements of a Complaint

As one can see from reviewing the forms mentioned above, a standard complaint for custody is to include, more or less, the following information:

Unlike a civil complaint, very little additional information or advocacy needs to be included in the complaint for custody.  The opportunity to advance additional information and/or advocacy is when interacting with the opposing party or attorney and/or at a hearing scheduled pursuant to the filing of the Complaint.  The purpose of the custody complaint is merely to get the most basic information before the court: who the case involves, what the Plaintiff wants, and an assertion that no other court has jurisdiction.

When requesting relief in the complaint, it is important to use the proper language which best describes why the Plaintiff is seeking.  23 Pa.C.S.A. §5322 lays out the terms and their definitions.  Pursuant 23 Pa.C.S.A. §5322, the relevant terms are as follows (as quoted directly from the statute):

  • legal custody: the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.
  • sole legal custody: the right of one individual to exclusive legal custody of the child.
  • shared legal custody: the right of more than one individual to legal custody of the child.
  • physical custody: the actual physical possession and control of a child.
  • sole physical custody: the right of one individual to exclusive physical custody of the child.
  • primary physical custody: the right to assume physical custody of the child for the majority of time.
  • shared physical custody: the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child.
  • partial physical custody: the right to assume physical custody of the child for less than a majority of the time.
  • supervised physical custody: custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.
  • In a statutory provision other than in this chapter, when the term “visitation” is often used in reference to child custody, and may be construed to mean:

(1) partial physical custody;

(2) shared physical custody; or

(3) supervised physical custody.

In the vast majority of case, the only issue in dispute is physical custody as, unless there is unusual and/or extenuating custody (e.g.: incarceration, absence, abuse), the parents of a child are both presumed to have a right to shared legal custody.  As defined above, physical custody is when a parent actually has a child personally with him.  By contrast, legal custody is the right of a parent to have access to, and make decisions regarding, important parenting and lifestyle issues.

It is also important to observe the fact that the specific definitions of/for the terms above do not always coincide with popular or colloquial usage.  It is very common for a client, when consulting with his attorney, to use one or more of the terms above without reference to its technical, legal, definition; therefore, it is important to discern precisely what a client is seeking instead of assuming even a vague familiarity, much less a fluency, with the terms mentioned above.  For example, many clients, when consulting with their attorney or filing a custody petition on a pro se basis, frequently indicate they are seeking “full custody” of their children, despite the fact that no such designation exists; similarly, they often refer to “sole custody” in the same way.  In addition, it is not uncommon for someone to use the term “visitation” when he really means “partial custody.”  So, it is important to discern what the client actually means sometimes despite the precise words being used.

A Collection of Family Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of family law issues and legal principles.  These writings have been published in The Legal Intelligencer, Upon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Musings:

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