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Joe Arcieri Songs: Hot and Cold 5

Joe Arcieri is a friend of mine who I worked with for many years during my ten years working for Acme Markets.  Joe, when not stocking milk or saving lives as a nurse, is an excellent guitar player.  I have had the privilege, from time to time, of (badly) plunking my bass guitar with Joe as he melts a face or two with a great solo.

As great musicians do, Joe has written some of his own songs and keeps a soundcloud site to post them.  When I have opportunity, I will post his music here as well.

Here is his composition called “Hot and Cold 5” which you can find here.

Here are the links to the previously posted songs by Joe:

Donald Trump and the American Left

The election of Donald Trump fractured the American Left. The abandonment of class analysis in response to Mr. Trump’s racialized nationalism left identity politics to fill the void. This has facilitated the rise of neoliberal nationalism, an embrace of the national security state combined with neoliberal economic analysis put forward as a liberal / Left response to Mr. Trump’s program. The result has been profoundly reactionary.

What had been unfocused consensus around issues of economic justice and ending militarism has been sharpened into a political program. A nascent, self-styled socialist movement is pushing domestic issues like single payer health care, strengthening the social safety net and reversing wildly unbalanced income and wealth distribution, forward. Left unaddressed is how this program will move forward without a revolutionary movement to act against countervailing forces.

As widely loathed as the Democratic establishment is, it has been remarkably adept at engineering a reactionary response in favor of establishment forces. Its demonization of Russia! has been approximately as effective at fomenting reactionary nationalism as Mr. Trump’s racialized version. Lest this be overlooked, the strategy common to both is the use of oppositional logic through demonization of carefully selected ‘others.’

This points to the most potent fracture on the Left, the question of which is the more effective reactionary force, the Democrats’ neoliberal nationalism or Mr. Trump’s racialized version? As self-evident as the answer apparently is to the liberal / Left, it is only so through abandonment of class analysis. Race, gender and immigration status are either subsets of class or the concept loses meaning.

By way of the reform Democrat’s analysis, it was the shift of working class voters from Barack Obama in 2012 to Donald Trump in 2016 that swung the election in Mr. Trump’s favor. To the extent that race was a factor, the finger points up the class structure, not down. This difference is crucial when it comes to the much-abused ‘white working-class’ explanation of Mr. Trump’s victory.

What preceded Donald Trump was the Great Recession, the most severe capitalist crisis since the Great Depression of the 1930s. The Great Recession followed approximately three decades of neoliberal de-industrialization, of policies intended to reduce the power of organized labor, reduce working class wages and raise economic insecurity under the antique capitalist theory that destitution motivates workers to produce more for less in return.

The illusion / delusion that these problems— lost livelihoods, homes, social roles, relationships, sense of purpose and basic human dignity— were solved, or even addressed, by national Democrats, illustrates the class divide at work. The economy that was revived made the rich fabulously rich, the professional / managerial class comfortable and left the other 90% in various stages of economic decline.

Left apparently unrecognized in bourgeois attacks on working class voters is that the analytical frames at work— classist identity politics and liberal economics, are ruling class ideology in the crudest Marxian / Gramscian senses. The illusion / delusion that they are factually descriptive is a function of ideology, not lived outcomes.

Here’s the rub: Mr. Trump’s critique of neoliberalism can accommodate class analysis whereas the Democrats’ neoliberal nationalism explicitly excludes any notion of economic power, and with it the possibility of class analysis. To date, Mr. Trump hasn’t left this critique behind— neoliberal trade agreements are currently being renegotiated.

Asserting this isn’t to embrace economic nationalism, support policies until they are clearly stated or trust Mr. Trump’s motives. But the move ties analytically to his critique of neoliberal economic policies. As such, it is a potential monkey wrench thrown into the neoliberal world order. Watching the bourgeois Left put forward neoliberal trade theory to counter it would seem inexplicable without the benefit of class analysis.

Within the frame of identity politics rich and bourgeois blacks, women and immigrants have the same travails as their poor and working-class compatriots. Ben Carson (black), Melania Trump (female) and Melania Trump (immigrant) fit this taxonomy. For them racism, misogyny and xenophobia are forms of social violence. But they aren’t fundamental determinants of how they live. The same can’t be said for those brutalized by four decades of neoliberalism

The common bond here is a class war launched from above that has uprooted, displaced and immiserated a large and growing proportion of the peoples of the West. This experience cuts across race, gender and nationality making them a subset of class. If these problems are rectified at the level of class, they will be rectified within the categories of race, gender and nationality. Otherwise, they won’t be rectified.

Democrats could have confronted the failures of neoliberalism without resorting to economic nationalism (as Mr. Trump did). And they could have confronted unhinged militarism without Mr. Trump’s racialized nationalism. But this would have meant confronting their own history. And it would have meant publicly declaring themselves against the interests of their donor base.

Mr. Trump’s use of racialized nationalism is the primary basis of analyses arguing that he is fascist. Left unaddressed is the corporate-state form that is the basis of neoliberalism and was the basis of European fascism. Recent Left analysis proceeds from the premise that state control of the corporate-state form is fascism while capitalist control—neoliberalism, is something else.

Lest this not have occurred, FDR’s New Deal was state control of the corporate-state form. The only widely known effort to affect a fascist coup in the U.S. was carried out by Wall Street titans in the 1930s to wrest control from FDR before the New Deal was fully implemented. Put differently, the people who caused the Great Depression wanted to control its aftermath. And they were fascists.

More recently, the effort to secure capitalist control has been led by liberal Democrats using Investor-State Dispute Resolution (ISDS) clauses in trade agreements. So that identity warriors might understand the implications, this control limits the ability of governments to rectify race and gender bias because supranational adjudication can overrule them.

So, is race and / or gender repression any less repressive because capitalists control the levers? Colonial slave-masters certainly thought so. The people who own sweatshops probably think so. Most slumlords probably think so. Employers who steal wages probably think so. The people who own for-profit prisons probably think so. But these aren’t ‘real’ repression, are they? Where’s the animosity?

As political scientist Thomas Ferguson has been arguing for decades and Gilens and Page have recently chimed in, neither elections nor the public interest hold sway in the corridors of American power. The levers of control are structural— congressional committee appointments go to the people with lots of money. Capitalist distribution controls the politics.

The liberal explanation for this is ‘political culture.’ The liberal solution is to change the political culture without changing the economic relations that drive the culture. This is also the frame of identity politics. The presence of a desperate and destitute underclass lowers working class wages (raising profits), but ending racism is a matter of changing minds?

This history holds an important lesson for today’s nascent socialists. The domestic programs recently put forward, as reasonable and potentially useful as they are, resemble FDR’s effort to save capitalism, not end it. The time to implement these programs was when Wall Street was flat on its back, when it could have been more. This is the tragedy of Barack Obama.

Despite the capitalist rhetoric at the time, the New Deal wasn’t ‘socialism’ because it never changed control over the means of production, over American political economy. Internal class differences were reduced through redistribution, but brutal and ruthless imperialism proceeded apace overseas.

The best-case scenario looking forward is that Donald Trump is successful with rapprochement toward North Korea and Russia and that he throws a monkey wrench into the architecture of neoliberalism so that a new path forward can be built when he’s gone. If he pulls it off, this isn’t reactionary nationalism and it isn’t nothing.

Otherwise, the rich have assigned the opining classes the task of defending their realm. Step 1: divide the bourgeois into competing factions. Step 2: posit great differences between them that are tightly circumscribed to prevent history from inconveniently intruding. Step 3: turn these great differences into moral absolutes so that they can’t be reconciled within the terms given. Step 4: pose a rigged electoral process as the only pathway to political resolution. Step 5: collect profits and repeat.

By Rob Urie and published on August 3, 2018 in Counterpunch and can be found here.

 

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.

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