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Archive for the category “Musings: Family Law”

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!

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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)
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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!

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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!

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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:

Major New Research Finds 40% of US Kids Are Poorly Attached–Middle Class Families Included.

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in Patheos which, I thought, was pretty insightful.  Be edified.

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New study reveals why parenting is THE social justice issue of our time.–

In a study of 14,000 U.S. children, 40 percent lack strong emotional bonds — what psychologists call “secure attachment”

Written by researchers from  Columbia University and the London School of Economics and Political Science, the report uses data collected by the Early Childhood Longitudinal Study, a nationally representative U.S. study of 14,000 children born in 2001. The researchers also reviewed more than 100 academic studies.

Their analysis shows that about 60 percent of children develop strong attachments to their parents, which are formed through simple actions, such as holding a baby lovingly and responding to the baby’s needs. Such actions support children’s social and emotional development, which, in turn, strengthens their cognitive development, the researchers write. These children are more likely to be resilient to poverty, family instability, parental stress and depression. Additionally, if boys growing up in poverty have strong parental attachments, they are two and a half times less likely to display behavior problems at school.

The approximately 40 percent who lack secure attachments, on the other hand, are more likely to have poorer language and behavior before entering school. This effect continues throughout the children’s lives, and such children are more likely to leave school without further education, employment or training, the researchers write. Among children growing up in poverty, poor parental care and insecure attachment before age four strongly predicted a failure to complete school. Of the 40 percent who lack secure attachments, 25 percent avoid their parents when they are upset (because their parents are ignoring their needs), and 15 percent resist their parents because their parents cause them distress.

Susan Campbell, a professor of psychology at the University of Pittsburgh, said insecure attachments emerge when primary caregivers are not “tuned in” to their infant’s social signals, especially their cries of distress during infancy. “When helpless infants learn early that their cries will be responded to, they also learn that their needs will be met, and they are likely to form a secure attachment to their parents,” Campbell said. “However, when caregivers are overwhelmed because of their own difficulties, infants are more likely to learn that the world is not a safe place — leading them to become needy, frustrated, withdrawn or disorganized.  The researchers argue that many parents — including middle-class parents — need more support to provide proper parenting….  READ THE REST HERE.

Detachment is the atomic level of the Culture of Death.  We cluck about the immorality of our culture, about poverty, crime, violence, and porn.  And these are all horrible things.  But we fail to see the foundation for all these social evils that Satan is building right under our feet and in our own homes. It’s easy to fuss about “the media” and “the culture” etc.  But it is hard, genuinely, really, really hard, to go pick up that crying baby when we already feel drained. And yet this the great spiritually transformative work that lies at the heart of The Corporal Works of Mommy and Daddy.

Am I saying that exhausted mothers should torture themselves to meet everybody’s needs all by themselves?  Absolutely not.   Every person needs help and has a right to get whatever help they need to be their best selves.  That should go without saying.

Attachment: The Root of Social Transformation

But every time Satan convinces a mother or father to remain consistently deaf to the cries of their children because it is somehow “bad” or even “unnecessary” or “ridiculous”  to respond to those cries, he is laying the foundation for all these other social evils. As Catholics, if we want to evangelize the culture, if we want to beat poverty, make children resilient against the evils of our fallen world, decrease  the crime rate, drug usage rates,  incidence of promiscuity, and pornography rates,  the single most important things we can do are 1) respond to our babies cries promptly, generously, and consistently, 2) shower our children with extravagant affection, and 3) use gentle guidance approaches to discipline that teach our children how to behavior virtuously instead of simply punishing bad behavior and crossing our fingers that they’ll figure out how to do what’s right on their own through the process of elimination.

Oversimplification?  Survey says…

I realize that this strikes some people as a ridiculous oversimplification.  I remember the editor of the new edition of Beyond the Birds and the Bees saying to me, incredulously, “It’s like you’re saying that the way to make our kids more moral is to hug them more.”  And, although that is a bit of an exaggeration, yes.  That is more or less exactly what I am saying.  Or rather, that is, more or less, what hundreds of studies of tens of thousands of children over the last 60 years are saying.  Over and over and over again.

And why should this come as such a surprise to us?  Our Church tells us over and over–and especially in Pope St John Paul’s theology of the body–that we were created for communion.  The family is the “icon of the Trinity” the most intimate communion that ever existed!  And we are made in the image of that intimate communion. Relationship IS the very essence of our being.  When we try to escape that reality, or ignore it,  limit it,  or tamp it down, bad things happen–to our kids, our families, and our world.  We think that having children need us is somehow crippling.  The exact opposite is true. Creating communion with our children is the most liberating thing we can do both for ourselves and for them.

Want To Change The World?

Are there lots of social ills?  There sure are.  But the cure really is pretty simple.  As St. Teresa of Calcutta put it, “What can you do to promote world peace? Go home and love your families.”   It turns out,  there’s a lot of research to support that pithy, but powerfully world-changing, sentiment.

If you want to discover more ways parents can change the world through love, check out Parenting with Grace: The Catholic Parents’ Guide to Raising (almost) Perfect Kids and Then Comes Baby: The Catholic Guide to Surviving and Thriving in the First 3 Years of Parenthood.

By Dr. Gregory Popcak and published in Patheos on September 15, 2016 and can be found here.

 

 

 

NBI SEMINAR MATERIALS: Advanced Family Law 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 “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.  I have posted the aforesaid materials over the past three weeks a here are links to all of them:

 

NBI SEMINAR MATERIALS: Effectively Arguing Contempt Issues

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 “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

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 “Effectively Arguing Contempt Issues.”

Thanks!

__________

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.  In a strictly technical sense, a domestic and/or family matter does not substantially differ from that of any other civil matter when it comes to contempt.  The court enters an order which lays out certain terms or instructions or directives to the parties involved in the case, and it is the responsibility of those parties to do their best to comply with the terms or instructions or directives in that order.  Failure to comply with the terms or instructions or directives in that order is to be, at least in a strictly technical sense, in contempt of that order.

 

Now, family court, perhaps more than any other court, is one which must be rather flexible to account for the vagaries of human behavior and the unpredictability of everyday life.  Therefore, while some orders may be strictly construed and enforced, others may allow for some flexibility in both practical application and interpretation.  So, when pursuing a contempt matter, it is best to do so judiciously and with discernment.

 

It is important to note that courts typically loathe to have to hear contempt actions and would much rather the parties spend the time working these issues out on their own before filing.  Therefore, before filing for contempt, please be sure to explore the options with the other party.  Sometimes a simple telephone call or email to open the lines of communication can go a long way to bring matters to a resolution without resorting to a contempt action.  Usually, a simple way to do this, at least at first, is to send a letter to the opposing party pointing out his obligation under the order and his failure to meet it, and requesting compliance within a reasonable amount of time.  Courts want to see parties make a good faith effort to resolve their differences; therefore, filing for contempt should only come after other reasonable attempts at resolution have failed.  As a corollary, and this is especially true in custody matters (described below), courts tend not to take picayune matters seriously.  If someone is violative of a court order in a minor way, especially one that resulted in no actual harm to the other party, a court is unlikely to take a contempt matter filed because of it seriously.  Sometimes a contempt matter surrounds a dispute over the interpretation of an order.  Unfortunately, even the most vigilant attorneys, judges, and jurists may write something that could be open to interpretation or does not account for every variable.  A disagreement over an interpretation is certainly something that could be resolved by a court, but if that disagreement is in good faith, it is unlikely to rise to the level of contempt.  It should be remembered that, in general, contempt actions are supposed to be corrective and not punitive; they are a safety valve to help a party receive what he is entitled to receive under a court order as opposed to a way to punish a recalcitrant person.

 

Contempt is approached in slightly different ways in each of the three primary areas of family law, and they are individually described below.

 

  • Divorce

 

Contempt in divorce matters generally crop up in two potentially contentious areas: discovery and the performance of a property division order.

 

Discovery in divorce is not much different than that of any other civil matter.  As seems unfortunately all too typical in all types of litigation, parties who receive discovery requests frequently do not respond to them in a timely fashion.  Failing to respond to discovery in a timely fashion can lead to motions to compel those responses.  A court granting a motion to compel the discovery responses typically sets out a hard deadline by which the responses must be furnished to the requesting party.  If that hard deadline is missed by the party who is to produce the discovery responses, the opposing party may proceed with a contempt action for the failure to abide by the order of the court requiring discovery to be provided by a specific date.

 

Now, as stated above, courts generally do not hold parties in contempt of their orders unless a party demonstrated a willful defiance of a court order.  So, if facing a contempt motion for failing to comply with a discovery order, viable defenses could, depending on the case, include, but are not limited to, things like:

  1. the items requested are impossible to produce (e.g.: they are destroyed or not in a party’s possession or have already been provided, etc);
  2. the items requested are too voluminous to produce in the time frame required;
  3. a good faith effort has been made to comply, but circumstances have resulted in untimely responses.

 

The other primary source of contempt litigation in the context of a divorce matter is the performance of a property division order.  A property division order can be the result of an agreement between the parties (e.g.: a Property Settlement Agreement) or by an order of a court after a hearing.  Regardless of which it is, they both effectuate the same purpose, which is to lay out how marital property is to be dealt with after the dissolution of a marriage.

 

A typical property division order includes provisions that identify which assets to convey, and when, from one party to the other.  As one may expect, for one reason or another, parties are not always completely compliant with the terms of a property division order.  As above, once again, a finding of contempt must include some sort of willful defiance of the order.  So, as above, defenses like impossibility or good faith may be viable.

 

Contempt matters involving agreements between the parties generally also involve a provision for the payment of the aggrieved party’s attorney’s fees by the party found in contempt.  As a result, it is important to avoid contempt and, if not avoided, keep the litigation to a minimum in order to ensure attorney’s fees do not accumulate.

 

  • Custody

 

Much of what has been said above applies to custody matters.  Contempt in custody matters distinguish themselves from the above as they also tend to carry a high degree of emotionality with them, are very fact dependent, and, if not used properly, descend into using the court as a referee or a life coach as opposed to a tribunal interpreting and applying the law.  Unlike divorce or support or most other areas of the law, the object of a custody order is not the parties, but a third party, namely a child (or children), and that child’s best interest is paramount.  This “best interests” standard potentially opens up times where a technical contempt is justified.

 

As one may expect, custody orders, among other things, lay out the times and places when a party may have custody of his child(ren), and how and when that/those child(ren) are to be transferred to the other parent.  The decision to withhold a child from the other parent, in contravention of the custody order, is one which is fraught with emotion, and the legitimacy of that decision is entirely dependent on factual circumstances.

 

Uncontrolled emotionality can sometimes lead to conduct that is clearly contempt of a custody order.  For example, two parents could get into an argument and, out of spite, the father then decides to withhold the child from the mother in violation of the custody order.  At other times, that emotionality can be a powerful source of strength to take the necessary action to protect a child.  For example, a father is using drugs in his home when his child is to be dropped off with him by the mother.  Considering the circumstances, the mother sees his drug use and elects not to provide the child to the father.  Both of these are technically contempt of an order as they both violate its terms, however a deeper investigation of the facts, and keeping the “best interests” standard in view, the second example above is justifiable and would probably not be contempt of the court order.

 

As one may expect, “best interests of the child” is a nebulous term-of-art and, therefore, interpreted all manner of ways by parents.  Before withholding a child due to “best interests,” it is important to ensure that the situation one is emotionally responding to is, actually, a “best interests” situation; clearly this is extremely fact intensive.  Watching a rated “R” movie would likely not warrant withholding a child as opposed to something much more serious like abuse, drug use, and/or neglect.

 

The typical contempt action in a custody matter surrounds compliance with the days and times a child is to be transferred between the parties.  As mentioned above, courts are loathe to get involved in the nitty gritty of someone’s life.  As a result, a technical contempt (i.e.: imprecision in compliance with the order) will likely not result in a finding of contempt, unless harm can be shown.  For example, if the child is to be dropped off at 8:00pm on Sunday night at father’s house by mother, but mother does not do so until 8:10pm, it is unlikely for this to result in a successful contempt action even if it is a technical violation of the order.  While this may seem ridiculous to the outside observer, nearly any custody attorney can vouch for the fact that it is not uncommon for a parent to expect such hyper-precise compliance with a custody order by the other, and finds that lack of compliance to be of grave significance.  The emotionality so often found in custody cases tends to distort a party’s perception of how such minor violations are viewed.  This is not to say that violating a custody order will never result in a finding of contempt.  For example, being significantly late, especially on habitual basis, will likely result in a finding for contempt.  Again, as mentioned above, these matters are highly fact dependent.

 

Custody also carries with it the vagaries of daily life that are entirely unpredictable.  All manner of things can interrupt compliance with a custody order that would not amount to contempt.  For example, failing to drop off a child at the scheduled time due to inclement weather, a traffic jam, sickness, accident, an event running long, or the like would probably not be contempt.  In fact, I think it can be said that losing track of time once or twice and being late would probably not be contempt either.  A custody arrangement is something that is embedded and intertwined with one’s life and schedule and it is important to be flexible.  Filing for contempt on a regular basis, or over minor issues, makes the filer look petty, badgering, and/or pedantic, and sometimes causes judges not to be sympathetic when a case of actual contempt arises.

 

Finally, some jurisdictions have such significant case backlog that a contempt action could lose its sting.  For example, if one party breaks a custody order for a few weeks straight in the month of May, the impact and significance of that violation may easily still be felt at a hearing on the matter in July.  Conversely, causing someone to miss some custody time in May, which is technically contempt of the order, seems distant and “yesterday’s news” when the hearing on the matter is not heard until November.  The practical issue of a court’s scheduling backlog should be considered when deciding whether to file for contempt.

 

So, when considering filing for contempt in a custody matter, it is important to do so with discretion and discernment, which accounts for one’s emotionality and the specific factual situation in which the case is found.

 

  • Support

 

Once again, as above, much of what has been said also applies to support matters.  Of the different types of family matters, support tends to be the most-straight forward.  A party (“obligor”) has an obligation to remit a certain amount of funds to the other party (“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.

 

Most support cases in Pennsylvania are enforced through a garnishment of the obligor’s paycheck.  As the support payments are, therefore, usually involuntary, contempt in a support context is not nearly as common as other areas.

 

Contempt in the context of support are 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 unique 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, the parties in a support case are not always as vigilant as they could be in filing for the modification of a support order.  So, for example, an obligor who loses his job (and neglects to request a modification of 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.

 

  • Penalties for Contempt

 

There is a wide range of possible consequences for someone found in contempt in family court.  The wide range is due to the fact that some violations of an order are minor, while others are more significant, and some are habitual.  The more significant the violation, and the more habitual it is, the greater the penalty will be.  “Habitual violations” means more than just doing the same thing repeatedly over a course of time (e.g.: nearly always being late for Sunday night custody drop off), it also can mean repeatedly violating a court’s specific directive.  For example, someone may receive a mild penalty if found in contempt of a custody order for being late on a Friday night.  If, two months later, the parties are back in court again on the same issue, the penalty will likely be more severe.

 

Perhaps the mildest penalty will be a specific directive by a court.  So, for example, a party violating a divorce order by failing to remit a settlement check may be found in contempt and directed to furnish it to the other party on a date certain at pain of more severe sanctions upon further violations.  The Court also may award attorney’s fees to the party who filed the contempt action to be paid by the party who violated the order.  Other more severe penalties, including incarceration, are possible depending on the situation.  In custody cases, the court may award additional custody time to a parent who was deprived of his time under the order due to the other party’s violation of the custody order.  Of course, if the parties informally agree to make up time before the contempt hearing, then the impact of the contempt action is greatly diminished.

 

  • Cases, Rules, and Statutes to consider:
    • R.C.P. 1910.20 through Pa.R.C.P. 1910.25-6;
    • R.C.P. 1915.12;
    • 23 Pa.C.S.A. §3703;
    • 23 Pa.C.S.A. §4344;
    • 23 Pa.C.S.A. §4345;
    • 42 Pa.C.S.A. §4132;
    • 42 Pa.C.S.A. §4133;
    • Rhoades v. Pryce, 874 A.2d 148 (Pa.Super.2005);
    • Chadwick v. Janecka, C.A.3 (Pa.2002), 312 F.3d 597;
    • Sonder v. Sonder, 378 Pa.Super. 474 (Super.1988);
    • Schoffstall v. Schoffstall, 364 Pa.Super. 141 (Super.1987);
    • Durant v. Durant, 339 Pa.Super. 488 (Super.1985).

NBI SEMINAR MATERIALS: 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 “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics.  I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.

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!
____________

 Ethics

  • 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.

 

  • Researching and Preventing Conflicts of Interest

 

The issue of conflicts of interest in a family case does not significantly differ from that issue in other areas of the law.  An attorney has to be sure that he has not represented the adverse party to a client in the past before taking a client’s case.  Being diligent in maintaining one’s office records goes a long way to ensure conflicts of interests can be avoided.

 

Perhaps the conflict of interest issue that arises the most in family court cases is when an attorney has the opportunity to represent a parent and a grandparent (or third party) simultaneously.  There are cases where, in addition to both parents, a grandparent (or other third party) also has standing to bring a custody claim.  In those sorts of situations, it is possible to represent one of the parents and the grandparent (or other third party) simultaneously.  Now, by definition, the parent and the grandparent can be opposed in a custody case because, as there are only so many hours in a day and in a week, any custody time awarded to the parent is custody time not awarded to the grandparent, and vice versa.  In other words, representing a grandparent can be a conflict of interest to representing the parent.  Sometimes, however, a parent and a grandparent work cooperatively against the other parent.  In cases like that, the parent and grandparent can be represented by the same attorney as long as the terms of representation are explicitly laid out in the retainer agreement.  These terms include identifying who the primary decision maker is, what their respective goals are in the case, and that neither would not act to undermine the case of the other.

 

  • 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.

 

  • When Your Client is Dishonest or Abusive

 

The attitude and demeanor of a client in any sort of case can, unfortunately, deteriorate until he becomes dishonest or abusive, and a family case is no different.  Indeed, given the level of emotions and frustration that can be present in a family case, it is not uncommon for a family client to sometimes take out that frustration on his lawyer.  As a result, it may sometimes be possible to help a client through his frustration and preserve the lawyer/client relationship.

 

If the relationship between client and attorney becomes intolerable, then it is incumbent upon the attorney to file a Petition For Leave to Withdraw from his representation of that client.  If the attorney is retaining the file, it must be turned over to the client if withholding it would adversely prejudice the client in his case.  Of course, throughout the withdrawal process, the seal of lawyer/client confidentiality still applies as much as practicable, so the issues raised in the Petition for Leave to Withdraw, and the subsequent hearing which may be scheduled for the same (assuming the adverse party appears at it), should reveal only the most essential issues necessary for the withdrawal.

 

In terms of dishonesty, if that dishonesty is between the attorney and the client, unless he has reason to know his client is being dishonest, an attorney can act upon the information provided by the client.  If the client is being dishonest with his attorney, then, ultimately, that dishonesty will likely adversely affect the client.  As with any other sort of case, an attorney cannot elicit testimony he knows will be dishonest, nor can he make representations to the court based on information he knows to be dishonest.  If honesty becomes a problem between the client and the attorney, then the attorney is best advised to withdraw from representing the client.

 

  • 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.

 

  • Handling an Ethics Complaint/Grievance

 

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.

 

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