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The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated.

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated,” on Now.org published on November 16, 2018, which can be found here.

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Melissa Chinery and Laura Medlin are two flight attendants who are suing American Airlines for negligence in handling their sexual harassment case. Forbes.com detailed the nature of the Chinery’s and Medlin’s claim. Chinery is a member of the Association of Professional Flight Attendants (APFA) union. She faced harsh online harassment from male union members and colleagues after Chinery ran for APFA local president.  Medlin says she faced similar harassment after attempting to take part in union activities. Both were called sexist, derogatory names such as “sow”, “flipper”(a euphemism for prostitute), and they used the c-word. After filing a report with the American Airlines Human Resources department, little was done to address Chinery’s harassment, according to Chinery. The online harassment escalated the more Chinery tried to seek help from within. Her car was keyed and anonymous numbers called to harass her mother. Amid the increasing attacks, American Airlines, according to Chinery, continuously failed to provide the two attendants with adequate support and protection.

The litigation between Chinery and Medlin against American Airlines started in June of 2016. Over the last two years, Chinery and Medlin provided ample evidence of a neglectful Human Resources department in their case. Dan Cleverly, a senior Human Resource investigator, admitted during the trial that Chinery’s harassment complaints were not properly investigated.

American Airline’s failure to enforce its social media policy showed a lack of understanding of the evolving nature of workplace harassment and discrimination. The utilization of social media as a means to alienate, intimidate, and bully women into submission cannot be tolerated. Additionally, the leadership of the Association of Professional Flight Attendants (APFA) should do a better job of countering harassment and intimidation by its members.

In September, Chinery and Medlin announced that are seeking an appeal after their case was ruled in favor of American Airlines. We stand with Chinery and Medlin and hope the appellate judge considers the new dimensions of the modern workplace. The continued fight for respect in the workplace needs to extend into online spaces as the internet becomes increasingly integrated into our lives.  Women deserve safe working environments online and offline.

Further Reading:

https://www.forbes.com/sites/tedreed/2018/09/12/american-airlines-flight-attendants-will-appeal-case-of-alleged-facebook-sexual-harassment/#d9baa5e16f66

Rebecca A. is a Government Relations Intern at the National Organization for Women (NOW) Action Center in Washington, DC. She is a student at the George Washington University.

Family Law’s Alphabet Soup: To Spell It Out or Stick With Initials

Over the last several years it has been increasingly common for the captions of child custody cases when taken on appeal to be referred to by the initials of the parties, as opposed to using their full names. Contrary to what many assume, the trend to initialize is not due to some established procedural rule or directive from the Pennsylvania Supreme Court, but, rather, it is due to a provision in the Pennsylvania Superior Court’s internal operating procedures.

Although initialization has been the practice of the Superior Court for around 10 years at this point, many attorneys, especially those who are more senior in the practice, have not been supportive of initialization, as it makes it difficult to remember the names of the cases, and makes any discussion of case law rather difficult. Indeed, the term “alphabet soup” has been applied to this practice. Furthermore, some trial courts have adopted the practice of initializing independently, which has made referring to a custody order with a third party rather difficult. So, for example, when a party or child’s name is initialized in a custody court order, a third party (e.g., a school or a doctor) may not comply with its terms as it has no objective way of knowing whether the initials in the order actually refer to the party or child seeking its application at that doctor’s office or school.

In order to create a uniform practice and consistent direction about when and why to initialize, two revisions to the Pennsylvania Rules of Civil Procedure, R.C.P. 1915.10 and 1930.1 are currently bring proposed.

The revision to Rule 1915.10 definitively authorizes trial courts to initialize custody cases if the facts of the case are considered sufficiently “sensitive” in order to protect the privacy and reputation of the parties and children involved. As an additional layer of privacy protection, any initialized court order or opinion must also take steps to obscure the names of schools or activities and other specific references to things that could be used identify the child(ren) and parties in the case; instead, general terms should be used when possible. For example, instead of identifying a child’s soccer league, an order should simply state something like “soccer league,” and instead of using a child’s school’s name, it should merely refer to a “school.”

In addition to the above, the suggested revisions to Rule 1930.1 require the full names of the parties involved to be used in captions unless the case involves “sensitive facts” and with consideration of the child’s best interests or violates the above revisions to R.C.P. 1915.10 protecting the privacy of sensitive cases. It is in the estimation of the drafters of the revisions that the typical custody case does not involve such sensitive information, or shocking and outrageous facts, that would require taking the additional measure of initialization to protect the privacy of the children or parties involved.

So, family attorneys, particularly those who focus on custody law, need to monitor these developments to ensure they remain compliant with the rules and sufficiently respect the privacy of the parties and children involved in their custody cases.

Published on October 1, 2019 in The Legal Intelligencer and can be found here.

Custody of Nonbiological Children—Burden and Proof Issues

In the matter of R.L. v. M.A., Case No.: 2740 EDA 2018, the Pennsylvania Superior Court delved into the leading edge of family law when it ruled upon whether an individual in a same-sex relationship can be awarded custody of a child with whom she has no biological relationship.

In R.L., the appellant, M.A., entered into a romantic relationship with R.L. (appellee) in 2012. During the relationship, the parties decided to impregnate the appellant via artificial insemination using sperm from the appellee’s brother.

The couple proceeded to prepare for the birth of the child by setting up the baby’s room and purchasing typical baby supplies. R.L. was present for the baby’s birth, chose the baby’s first name, and gave the baby her own surname. Not long after the child was born, the couple broke up.

Instead of litigating, the parties entered into an informal agreement for the custody of the child. The child lived primarily with the appellant and spent every other weekend with the appellee. This arrangement lasted until 2014 when the parties informally elected to equally share custody of the child. This 50/50 arrangement lasted nearly four years until R.L. called the daycare center where the appellant worked and which the child attended. R.L. complained that the appellant was having too much contact with the child while in daycare and even inappropriately (in her opinion) removed the child from the daycare premises.

In response to the above-mentioned telephone call, the appellant unilaterally discontinued their customary 50/50 arrangement, which led to R.L. filing a complaint for custody of the child. R.L. was granted in loco parentis over the child fairly quickly, which conferred R.L. standing to have custody of the child. The matter went to trial and the trial court entered an order granting each party equal custody, alternating on a weekly basis; the appellant appealed this order to Superior Court.

On appeal, the appellant argued that the appellee did not meet the burden of clear and convincing evidence that a nonparent should have custody equal to a parent, and that the court erred in weighing the evidence presented.

In support of her argument that appellee did not meet her burden of proof, the appellant argued that 23 Pa.C.S. Section 5327 requires a trial court to apply a presumption in favor of parents over nonparents, and, as a “nonparent,” the appellant did not meet her burden to overcome the presumption in favor of the appellee. The appellant also argued that the trial court erred in considering the parties’ informal shared custody arrangement when rending its decision.

In making its ruling, the Superior Court acknowledged that “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” In saying that, the Superior Court also recognized that this principle does “not preclude an award of custody to the nonparent.”

Additionally, the court made it clear that the “best interests” standard is still the touchstone when entering a child custody order. Furthermore, once someone is granted in loco parentis, she need not demonstrate that the other party is unfit, but rather merely demonstrate that it is in the best interests of the child (as proven by clear and convincing evidence) to be with the nonparent party.

The Superior Court ruled that the appellant did meet her burden of clear and convincing evidence, specifically by demonstrating that the parties lived out an agreed shared custody arrangement for a number of years, indeed most of the child’s life, and only discontinued that arrangement due to the appellee being upset over the appellant’s telephone call to the daycare center, as opposed to anything directly related to custody.

The Superior Court also indicated that the appellant’s interpretation of the law is incorrect. Namely, while the scales do tip heavily toward a parent over a nonparent, there is a distinction as to whether that nonparent is seeking shared, as opposed to primary, custody. As she was only seeking shared custody, the appellant only had the burden of clear and convincing evidence to bring the scales even with the appellee. Only if the appellant were seeking primary custody would she have to tip the scales hard toward herself under the burden of clear and convincing evidence.

Ultimately, a nonparent seeking shared custody of a child has to have standing and demonstrate by clear and convincing evidence that such a custody arrangement is in the best interest of a child.

This article was originally published in The Legal Intelligencer on June 27, 2019 and can be found here.

American Airlines Defeats Flight Attendant’s Suit Claiming Facebook Harassment

U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania granted American’s motion for summary judgment on plaintiff Melissa Chinery’s claims.

According to Robreno’s opinion, Chinery ran for the presidency of the flight attendants’ association on the platform of rejecting a contract with American. She lost.

Fellow flight attendants Paul Sears, Jim Brown, Victor Dunson and Dan Datzer posted on a Facebook group called “Wingnuts” and Chinery alleged the posts amounted to sexual harassment.

‘“I just voted ‘NO’ to these clowns,’” Datzer wrote on the page, according to Robreno’s opinion. “’it’s your cunstitutional [sic] right to vote NO.’”

Dunson posted on Wingnuts, according to Robreno: “’this is war. Brian and [incumbent president] Kim [Kaswinkel] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with.’”

Chinery took this as a form of sexual harassment, alleging that Dunson would not have said the same to a male candidate.

Chinery filed a claim with American’s human resources department and the U.S. Equal Employment Opportunity Commission but no action was taken. Later, Chinery was reported to have surreptitiously filmed American’s vendor and was called into a two-hour meeting by American to discuss the matter.

In order to prevail on disparate treatment, Robreno said Chinery would have to prove she belongs to a protected class; she was qualified for her position; she was subject to an adverse employment action; and members of the opposite sex were treated better or that there was an inference of discrimination. For the retaliation claim, Chinery had to show she was engaged in a protected activity and suffered an adverse employment action for it.

“Chinery argues that after she was anonymously accused of violating American policy, she was required to participate in an approximately two-hour meeting after which she was cleared of wrongdoing and not disciplined in any way,” Robreno said. “This event is not serious enough to alter the terms of Chinery’s employment, thus, it is not a qualifying adverse action.”

Robreno said Chinery’s hostile work environment claim also failed.

“While there are a number of serious questions that are raised by Chinery’s claims—including whether the alleged harassment over Facebook was due to her sex rather than her opinions regarding the union’s collective bargaining agreement with American, and whether the harassment actually occurred in the work environment—it is clear that the alleged instances of harassment were not so objectively severe or pervasive to give rise to a cause of action,” Robreno said.

Daniel Farrington represents American and did not respond to a request for comment.

David Koller represents Chinery and said, “We just received the decision and have not had a chance to go over it yet with our clients so cannot comment much on it.  We thought the situation presented an interesting and timely legal issue regarding social media policies in the workplace.  But more important than that, we are obviously disappointed for our clients.”

Flight Attendants are Fighting a Culture of Harassment at American Airlines

The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “Flight Attendants are Fighting a Culture of Harassment at American Airlines,” in Ms. Magazine b published on November 26, 2018, which can be found here.

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There’s little that female candidates for public office can do when men post vile and harassing messages about them on social media. But when flight attendant Melissa Chinery’s male co-workers took to Facebook to make offensive and threatening comments about her when she ran to be president of the flight attendants’ union, she filed a sexual harassment grievance with her employer.

Instead of disciplining her harassers, however, American Airlines promoted them.

Two flight attendants have filed a lawsuit against American Airlines for fostering a culture of sexist online harassment among employees. (Kristoffer Trolle / Creative Commons)

Chinery and fellow AA flight attendant Laura Medlin have filed sexual harassment lawsuits against the airline for failing to respond to their complaints about male co-workers posting hundreds of derogatory messages about them on social media work group pages. They allege that male co-workers called them “c*nts,” a “flipper” (slang for prostitute) and a “sow.” One man posted a photo of a “bedazzled vagina.” Another wrote: “I can’t stand these crusty c*nts.”

Chinery first heard about the harassment from her flight service manager, but after filing her complaint, Chinery alleges that, after filing her complaint, she faced retaliation, including threats of discipline and repeated drug and alcohol tests. “My manager called me, then failed to take any action to stop the problem,” Chinery told SavvyStews. “No apologies from anyone, just an escalated attack.” AA’s Human Resources failed to even respond to Medlin’s complaints for many months.

Instead of disciplining the men, AA ultimately promoted two of them to positions in the training department. One is now working full time at American’s headquarters, training flight attendants for their annual airworthiness qualification, where he has the ability to pass or fail female flight attendants. The promotions gave another man access to Chinery and Medlin’s personal information and schedules; he knows where they are, what hotels they are staying in and other information that could compromise their safety.

Meanwhile, the men continue to insult their female co-workers on social media. At least 11 other American female flight attendants have reportedly been bullied and harassed by their male co-workers. This behavior was apparently not bad enough for George H.W. Bush-appointed Judge Eduardo C. Robreno to allow the case to go to trial. Robreno dismissed the combined suits in September, ruling that the behavior was not severe or pervasive; Chinery and Medlin have filed an appeal in the Third Circuit Court of Appeals in Philadelphia.

Unlike office workers, flight attendants don’t see each other every day, transforming social media into a main means of communication—the new “virtual water cooler,” where co-workers talk and exchange ideas. What happens on social media has a direct impact on employees’ work experience. “Given the unique nature of social media, the harassment our clients experienced was all-pervasive and impossible to escape,” Faye Riva Cohen, the women’s attorney, told the media. “We believe that the Judge failed to adequately consider the power of social media and its impact on the workplace.”

In addition to the harassment itself, American Airlines attorneys have subjected Chinery and Medlin to invasive demands for personal information—including their medical records, medications they take and medical conditions they have. They demanded records from a C-section, pap smears and mammograms. AA attorneys questioned the women about their finances and other personal matters, presumably hoping to dig up something shameful so they could pressure the women to drop the suit for fear the information would be made public; they even deposed Chinery’s 74-year old father.

The men, on the other hand, were protected, never having to produce any personal information in the lawsuit. Rather than protecting their female employees, AA’s former Chief Financial Officer invited them to his wedding.

Chinery and Medlin have spent decades working for American Airlines, but they have yet to receive so much as an apology for the harassment they have had to endure, and American has shared no plan with them to prevent this sort of behavior in the future. That means it’s up to all of the customers flying the word’s biggest airline to demand justice for its female employees.

If you fly American, contact the airline and ask them what they are doing to ensure that all women are treated respectfully in their workplace. Demand that they create a safe workplace, one that is free from gender-based hostility and harassment, and demand that the human resources staff respond promptly and effectively to complaints of harassment.

Do this for Chinery, Medlin and the thousands of women who work at American Airlines who can’t afford to fight back.

Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.

Will a Philly woman lose her home because of Family Court delays?

It seemed almost too good to be true: Mary Beth Novak found a job in Montgomery County as a police officer and a home she could afford in Royersford, in a good school district, just in time for her daughter to start fifth grade. No more scrambling to arrange transportation from her Northeast Philadelphia home to Catholic school in Bucks County — a commute that went from difficult last year to impossible now that Novak works out of town.

Now this dream, which seemed tantalizingly close, is vanishing like a mirage. Novak is bracing to back out of the house purchase, and lose close to $8,000 — her deposit and related costs. And she still isn’t sure where her daughter will be going to school next month, or how she’ll get her there.

The problem is that even though she has primary custody and support from a counselor who Novak and her ex had agreed to defer to in case of disputes, her daughter’s father has opposed the move that would take her an hour’s drive away. And, though Philadelphia Family Court is required under state law to provide an expedited hearing to resolve relocation disputes, her court date is not until next March.

“I had no idea all this stuff could happen,” Novak said. “I don’t know what to do.”

Novak is one of thousands of parents affected by a backlog in the court’s Domestic Relations section that attorneys call “unconscionable,” “tragic,” and “unbearable,” given that in some cases parents are being denied access to their children, or are losing jobs and homes while they wait for the court to weigh in.

“It’s extremely frustrating for the parents, but also really tragic for the children,” said Susan Pearlstein, co-supervisor of the Family Law Unit at Philadelphia Legal Assistance. “Things become so contentious and stressful when you have to deal with this lack of access and waiting to go though the court. The impact on children can’t be overstated.”

Attorneys who work in the system point to a slew of contributing factors: a shortage of judges and other staff; inadequate opportunities for emergency hearings; inefficient processes that allow cases to bounce almost endlessly between courtrooms; and the foibles of elected judges who may have little or no experience in family law.

Seven lawyers who practice in the court said court dates are now being set nine months or more in the future. (Family Court dockets are not accessible to the public.) A spokesperson for the court, Martin O’Rourke, said he did “not believe” there is a nine-month backlog but said any delays are due to vacancies on the bench.

“They’re working diligently, and doing the best they can being two judges short,” O’Rourke said, adding that as of Tuesday, Judge Stella Tsai is going to be temporarily reassigned to the court for six months to help work through the backlog.

Family Court has been down a judge since January 2016, when Judge Angeles Roca was suspended for intervening in a tax case involving her son. Her seat, one of six vacancies in Philadelphia, has been officially open since November 2017. A spokesperson for Gov. Wolf, who must nominate replacement judges for state Senate approval, said in an email that “discussions with the Senate are ongoing.”

Making matters worse, Judge Mark Cohen — the former state representative elected as judge in 2015, despite a not-recommended rating from the Bar Association and no experience in practicing law — has been on an extended leave since May 15 and expected to be out until sometime in October. He had been specially assigned to handle relocation cases.

O’Rourke said that up until Cohen took ill in May, relocation cases were being heard within two months. Now, he added, the court is working quickly to prioritize and reschedule these cases.

Gary Mezzy, Novak’s lawyer, noted that state rules require expedited hearings in relocation cases. “I’ve seen this rule followed in every other local county,” he said. “This constitutes a major statutory violation of litigants’ rights.”

A lack of resources

In 2017, there were 76,000 filings in Philadelphia Family Court’s Domestic Relations section, including 21,800 custody filings in Philadelphia.

Lawyers say that’s an extraordinary workload for the designated quota of just 11 judges.

A judicial-needs assessment conducted by the Administrative Office of Pennsylvania Courts last year found that the court has approximately the correct number of judges for its caseload.

But that doesn’t account for complicating factors, like the fact that more than 85 percent of people appearing in Family Court don’t have lawyers, which drags out proceedings.

“There’s a lack of resources on a lot of levels,” Pearlstein said, noting, for example, that there are just two Spanish-language interpreters at Family Court. For families speaking other languages, delays related to getting an interpreter are even more problematic.

Attorneys say delays go well beyond relocation cases and began long before the current vacancies.

Sarah Katz, of Temple’s Family Law Litigation Clinic, said that, in recent years, the court has increased the ranks of its custody masters, lower-level officials who can resolve a limited number of issues. That helped, she said.

“But the things that need to go in front of a judge are things like requests for primary custody, which usually means there’s something serious going on — some accusation of domestic violence, child abuse, substance abuse. There’s some urgency to the situation, and those are the types of cases that aren’t being heard.”

Megan Watson, a lawyer with Berner Klaw & Watson, has been collecting examples. In one recent case, a party filed a complaint for custody in September 2017. They appeared before a custody master, where they agreed to a temporary custody order in November 2017. A judge trial was scheduled for August 2018, and then, due to a conflict, was rescheduled for March 2019.

By contrast, state rules set much shorter deadlines: 180 days after filing for a judge trial to be scheduled, 90 days after that for the judge trial to occur, and 15 days after that for a judge to issue a decision.

“They never do that, and nobody enforces it,” lawyer Richard Bost said. “Eight months for a hearing to be scheduled in front of a judge has probably been the norm for the last three years or so.”

There is a process to request an emergency hearing for issues that can’t wait.

The problem is,  Pearlstein said, “in order to get an emergency, a child has to be practically dying.”

Recently, she was denied an emergency hearing for a woman who had primary custody of an 8-month-old, but who had not seen the child in a month because the father, who was supposed to have custody on weekends only, was withholding access. Also not considered an emergency was a case in which a third party with no custody claim was keeping a child from its parents — even though doing so could be considered “interference with the custody of a child,” a felony under Pennsylvania law.

Some of those cases would qualify for expedited hearings, lawyers said. But it can take six or eight weeks to get an expedited date — and, because they’re generally very brief hearings without time for full testimony, the orders made there are only temporary.

In cases like Novak’s, expedited hearings aren’t much help. Hers is scheduled for Aug. 29, a full month after the scheduled closing on her house and two days after her daughter was to start at her new school. Even if she does follow through with the hearing and get permission to relocate temporarily, she might be forced to move back to Philadelphia at her full hearing in March.

Pearlstein said that’s happened before, sometimes in the case of clients fleeing domestic violence or homelessness.

“Their option is to give the child to the other parent in the interim, or come back and be homeless and figure out what to do,” she said.

In other cases, the delays effectively mean parents never get to argue their case.

Lawyer Ann Funge said that was the case for a client of hers: His ex had moved with their kids to Bucks County, even though it meant he could only see them every other weekend, instead of every day.

After a year waiting to see a judge, he decided fighting was no longer in the best interest of his children.

“They were already taken away from their school, away from their friends, and they’ve reestablished themselves someplace else,” Funge said.

Further bogging down the system, lawyers say, is the way in which some judges manage their courtrooms.

Diana Pivenshteyn, a mother of two from Somerton, first appeared in Family Court in March 2017 in a custody dispute with her estranged husband. That hearing was continued to November. After the judge had to move on to other matters, she gave a new date: this coming August. To this day, no permanent custody order has been put in place for her daughters, who are 2 and 7.

Pivenshteyn said she’s borrowed thousands of dollars to pay for representation for these ongoing court dates.

“This is my nightmare for two years,” she said.

‘Hard to fix a broken system’

Court administrators and lawyers agree that filling the vacancies would be an important first step.

“But it’s not just about the vacancies. There are other underlying problems,” said Watson, the lawyer with Berner Klaw & Watson. “It is very hard to fix a broken system when you are dealing with so many people. I get that.”

She and others said there’s a need for more staff at all levels, for an emergency-hearing system that addresses what they say are often real, emergent crises, but also for a more thoughtful structuring of the courthouse. (In the bigger picture, she said, it also underscores the need for merit-based selection of judges.)

For example, although state rules outline a “one family, one judge” policy, in Philadelphia, cases frequently bounce between courtrooms. That means a judge may be reluctant to make a decision stepping on another’s toes, or he may have to tread ground already covered at previous hearings. It also means a parent who doesn’t like a judge’s decision can simply file a new petition for custody and hope for a different judge.

“One of the problems is repeat filings, and the court has taken no action to reduce those,” lawyer Lawrence Abel said.

O’Rourke, the spokesperson for the court, said the court is also building a custody mediation center at the courthouse to provide affordable access to mediation and, hopefully, resolve more disputes without a judge.

Watson said that, given the outsize effects of stress and anxiety on a child’s developing brain, it’s an urgent problem.

“You can think of the ways a child would be impacted by not knowing, ‘Where am I going to live?’ ” she said. “If there is any case that should be decided quickly, it’s custody.”

By Samantha Melamed and published in The Philadelphia Inquirer on July 18, 2018 and can be found here.

Interference With Child Custody or Kidnapping? High Court Sorts It Out.

The Pennsylvania Supreme Court has recently handed down a ruling in the matter of Pennsylvania v. Tex Xavier Ortiz, 45 WAP 2017, that addresses and clarifies whether the criminal offense of interference with the custody of children, committed by a biological parent, can serve as an underlying felony for the crime of kidnapping a minor.

In a related custody matter to Ortiz, the maternal grandmother of the father’s (Ortiz) daughter, was awarded primary custody of his daughter as Ortiz failed to appear at the custody hearing. Per the order granting her primary custody, the grandmother attempted to exercise her custodial rights over the daughter, but could not locate her. After an investigation, it was found that Ortiz had his daughter and made efforts to conceal his whereabouts. The daughter was eventually found and returned to the grandmother, and Ortiz was arrested.

Ortiz was charged and convicted of interference with the custody of children (ICC) (pursuant to 18 Pa.C.S. Section 2904(a) and (c)) as well as kidnapping a minor (pursuant to 18 Pa.C.S. Section 2901(a.1)(2)). Ortiz appealed and argued that the ICC cannot serve as an underlying felony for the kidnapping of a minor when committed by a biological parent. Pennsylvania Superior Court agreed with him, and the commonwealth was granted an allowance of appeal to the Pennsylvania Supreme Court.

The court first observed that the kidnapping-of-a-minor statute has two required elements: the unlawful removal of a child a substantial distance away without the consent of the person responsible for the supervision of the child, and one of the four enumerated states of intent as described in Section 2901(a.1)(1) – (4) (i.e: (1) to hold for ransom or reward, or as a shield or hostage; to facilitate commission of any felony or flight thereafter; to inflict bodily injury on or to terrorize the victim or another; and, to interfere with the performance by public officials of any governmental or political function.). Next, the court discussed the ICC, which prohibits “the taking of a minor ‘from the custody of its parent, guardian or other lawful custodian, when the actor has no privilege to do so.’” The two statutes clearly closely track one another and significantly overlap.

The court then turned its focus on Section 2901(a.1)(2) where kidnapping of a minor requires an intention to commit a felony or flee with the child and looked at how that related to the ICC. The court observed that applying the ICC to Section 2901(a.1)(2) resulted in unworkable circular logic. Specifically, the court opined that “it is logically problematic to assert that father unlawfully removed the child pursuant to the kidnapping statute with the intent to make it easier to unlawfully remove the child as contemplated by the ICC statute … stated otherwise, the act of taking does not, sensibly, facilitate the act of taking.”

To discern a proper understanding of how to interpret these statutes together, the court looked to the Model Penal Code, from which both statutes at issue herein are derived. Pursuant the commentary to the Model Penal Code, kidnapping protects against physical danger, while the ICC serves only to maintain parental custody of children against unlawful interference, which does not necessarily touch upon any of the four statutory states of intent in the kidnapping statute listed above. Furthermore, someone who commits kidnapping typically has malevolent intent toward the child, while, by contrast, violating the ICC, although unlawful, is committed by someone who typically is favorably disposed to the child. The ICC, therefore, operates as a lesser included offense to kidnapping to allow for punishment of the act of unlawfully taking a child contrary to a custody order, which is less severe than standard kidnapping in that it does not meet the states of intent mentioned above.

Based on the above, the court ruled that a conviction under the ICC cannot form the underlying felony for a kidnapping charge under Section 2901(a.1)(2). The court found that the authors of the Model Penal Code “having assiduously explained that kidnapping requires more than interference with the custody of a child by a parent—did not intend for such interference to be reintroduced into the calculus under the rubric of a predicate felony.”

Finally, the court rejected the commonwealth’s argument that a defendant may be prosecuted under all available provisions under 42 Pa.C.S. Section 9303 because the kidnapping statute and the ICC do not cover the same underlying conduct.

In sum, a finding that a biological parent committed the crime of interfering with a custody order under 18 Pa.C.S. Section 2904(a) and (c) cannot also serve as an underlying felony for a charge and conviction for kidnapping a minor.

Originally published in The Legal Intelligencer on December 20, 2018 and can be found here and by The Pennsylvania Family Lawyer and found here.

Why I’m Not a Leftist

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in Splice Today by my old philosophy professor Dr. Crispin Sartwell from back in my Penn State days which, I thought, was pretty insightful. Be edified.

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The left wants to solve oppression by more thorough oppression.

I’m an egalitarian. I don’t think there’s a natural hierarchy of race or gender or sexuality or class. I call myself a feminist and anti-racist, and have worked hard at it; I’ve tried to reflect and change, insofar as that’s possible for a person like me. I’m outraged by the enduring, intensifying hierarchy of wealth that eats the world. I’m not opposed to buying and selling or ownership in all forms, but I’m certainly not a go-go capitalist. The picture of humanity that you get in capitalist ideology, in which everyone is dedicated above all to serving their own economic interests, makes me ill. I wish for a world where every sort of person is valued and in which the giant structures that oppress us all have been leveled.

In other words, I’m down with the goal. But the terrible problem with leftism, the practical problem and the theoretical problem, comes in the realm of the means to reach it. The left wants to solve oppression by more thorough oppression. It wants to solve hierarchy by imposing hierarchy. To free you, it intends to re-make you, re-train you, transform you, and to create institutions that are capable of doing that to everyone. At the beating bleeding heart of the left is the most obvious and the most destructive contradiction in the world.

Marx taught that a bourgeois intelligentsia will lead the proletariat to see where its own interests really resided: in the destruction of capitalism. This elite will spearhead a transformation to a new, much more equal world, which will be accomplished by a government the size and power of which will be unprecedented in human history, a “despotism” or “dictatorship” that controls all manufacturing, transportation, education, finance, and communication, to begin with, and that “liquidates” class enemies. This program (despite what a Marxist might tell you) has been sincerely applied all over the world. It has led to some of the most entrenched hierarchies of power and to most of the most murderous regimes that the world has ever seen.

That’s entirely predictable, because history shows that hierarchies coincide. If you dismantle the existing economic hierarchy by creating a more powerful state, resources will flow toward the power, and the people who constitute that state will be at apex of a new economic hierarchy, enforced by unprecedented powers. Consider China, for instance. The idea that you’re going to make us equal through oppression is really stupid.

The contemporary mainstream left isn’t usually flatly Marxist, but it has brought that along with it. There are almost no ideas whatever except further government programs, an ever-growing coercive state power that devours different segments of the economy and of social life, that tries to mold minds in its image or for its purposes, that imposes the envisioned transformation from the top down.

Unfortunately, government is obviously not whatever the left thinks it is. It’s not all of us together, which should be obvious to the left during the Trump administration. It’s an actual group of people. All you propose to do is create a new class, dominant both economically and politically, and I think you have largely been successful in this regard. Turn over the sort of power you contemplate to a government, and you should expect in the long run to be its victim.

Morally, it’s unconscionable to separate means and ends in this way, to countenance ever-more thorough oppression for anti-oppressive ends. Practically, welfare-state liberalism and state socialism have had the direct result of consolidating economic and political power into more or less the very same hands, and placing everyone at their mercy.

I’m not enumerating examples very elaborately here, but I’ll give you one. Public housing programs uprooted many functioning communities. They enhanced or imposed racial segregation. They often led to nightmarish living conditions. Their declared purpose was to make people more equal, or even to address racial disparities and move us to a more just society. The power that was constituted by the funding and the law accomplished effects precisely opposite of those it declared. That, in brief, is the history of the whole left.

This idea where they will free us by oppression is a sort of tic on the left. Once you see it clearly, that’s more or less all there is. A beautiful example is today’s anti-free-expression movement, which is dominant on college campus, but has bled into everywhere. We will free the oppressed by imposing formal and informal, state or institutional, limits on the expression of everyone. We will free everyone by forcing them to say the right thing and wear only the permissible outfits.

Meanwhile, we’ll constitute powers of surveillance, institutional sanctions, and various techniques for silencing people that can be turned to whatever purposes the people who control them care to pursue. Create a power capable of controlling the speech of your enemies, and you should expect to be silenced yourself. You’ll deserve it, too. In all your history since 1848, you have proposed to free us by enslaving us. You’re immune to the historical information that makes it obvious that that is a disaster.

Anyway, you have beautiful ideals. I share these ideals. You have ugly, unimaginative, demonstrably disastrous procedures for realizing these ideals, and on those I’ll fight you tooth and nail. And, as long I control my mouth, I’ll say whatever I please.

Next week (barring irresistible news developments): Why I am Not on the Right.

—Follow Crispin Sartwell on Twitter: @CrispinSartwell

This article can be found here.

 

Parties in Dependency: Proper Notice and Participation Is Essential

The stakes in a dependency matter are extremely high.  Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate.  The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child.  Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS.  A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.

The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone.  CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration.  In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.

The trial court agreed with CYS and denied the continuance.  CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability.  The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.

The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order.  Mother subsequently filed a timely notice of appeal of the above-described court orders.  Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process.  Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.

On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation.  In making her argument, pointed out three procedural rules.  First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331.  Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.”  Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition.  Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….”  Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court.  Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.”  Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”

Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above.  First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order.  Obviously Mother could not have received service of the Petition per Rule 1331.  Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331.  Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361.  Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363.  As a result, there is nothing in the record suggesting Mother was properly served with the summons.  Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)).  To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself.  Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.

Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above.  Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate.  Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.

Originally published in The Legal Intelligencer on July 11, 2017 and can be found here and republished in the Pennsylvania Family Lawyer in its October 2017 issue and can be found here.

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