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Double Trouble: Custody Contempt in a PFA Matter

In the matters of E.K. v. J.R.A. and J.R.A. v. E.K., 2020 EDA 184, the Superior Court of Pennsylvania reviewed two interrelated orders entered by the trial court regarding a mother (E.K.) and father (J.R.A.) litigating a protection from abuse (PFA) and custody issues, both of which were appealed by the father. At issue was whether alleged past acts of violence could be introduced as evidence at a PFA hearing and whether notice is required before entering a custody contempt order.

The mother and father have a substantial history of custody and PFA litigation against one another. Over the course of their litigation, the mother has alleged many incidences of abuse and threatening behavior committed by the father, such as inundating her with hundreds of text messages, slamming her head on the ground, and injuring her wrist by driving a truck while her hand was stuck in the steering wheel. In the parallel custody action between the parties, The mother made similar allegations as those in her PFA. The parties resolved both the PFA and the custody matter through negotiated agreements.

After some time, the mother eventually filed additional custody and PFA petitions/motions. This additional litigation culminated in an Oct. 25, 2019, PFA petition brought by the mother. This PFA petition centered on one of father’s social media posts that the mother found threatening. During her testimony at the hearing for this PFA, the mother testified to a variety of violent and threatening acts allegedly committed by the father, some of which were alleged in the claims made in the PFA at issue.

At the conclusion of the hearing, the trial court entered an order granting the PFA. In addition, and unexpectedly, the court also made a sua sponte ruling in the parties’ custody case, entering a second order finding the father in contempt of the applicable custody order and ordering him incarcerated. In response to the above orders, the father filed an appeal of the PFA matter and an emergency motion to vacate the contempt order and to release him from custody. In response, the trial court entered a supplemental order releasing the father from custody and denied the emergency motion as moot. The father appealed both the PFA and custody contempt orders.

On appeal, the father argued that the trial court abused its discretion in granting the PFA by considering his alleged past acts of violence, and violated his due process rights by entering a custody order without adequate prior notice.

With regard to the PFA, the father argued that the trial court’s consideration of alleged past acts of violence ran afoul of the doctrines of res judicata and collateral estoppel. The father argued that as he and the mother had extensive prior litigation regarding these alleged prior acts of violence—some of which did not result in a ruling in the mother’s favor—they should have been precluded from consideration. The court rejected these arguments. First, it ruled that res judicata did not apply as the PFA in the instant matter addressed a separate incident of alleged abuse than those addressed in the prior PFA litigation, namely a specific social media post. Second, collateral estoppel was held not to apply as the allegations in the prior PFA action was resolved by agreement, so neither party had a full or fair opportunity to litigate those allegations at the prior proceeding. In addition, prior PFA matters also dealt with the father’s alleged abuse of other parties and not necessarily the mother, who was the plaintiff in the instant PFA.about:blank

The court noted that a critical element of a PFA is whether the plaintiff has a reasonable fear of bodily injury. The court specifically observed that past abusive conduct is “a critical inquiry necessary for entry of a proper order” and that “past acts are relevant to determine the reasonableness of the petitioner’s current fear.” The fact that some of these alleged acts took place more distantly in the past is not necessarily determinative. Instead, such a history could reveal a pattern of behavior that may leave long-lasting trauma on the victim of the abuse long after the incident which caused it, and it is entirely reasonable to consider that when entering a PFA order.

Finally, the father took issue with the fact that the PFA order not only prohibited him from contacting the mother, but also prohibited him from some interaction with the mother’s boyfriend and co-workers, as well as the children of the parties. The father argued that as these other individuals were not parties to the PFA, did not testify at the hearing, and the father had never been to the mother’s place of work, so the court abused its discretion when it included them in the order. The court ruled that per 18 Pa.C.S. Sections 2709 and 2709.1 and 23 Pa.C.S. Section 6108, the trial court was within its authority to include other “designated persons” with whom the father must avoid contact as that could help “bring about the cessation of abuse of the plaintiff.” Further, the court also mentioned that the PFA Act “does not require the plaintiff to initiate a PFA action on behalf of children in order to obtain custody relief” and, to that end, a “court shall consider any risk posed by the defendant to the children as well as risk to the plaintiff” which “allows for the entry of a temporary custody/visitation order” in the context of a PFA. Indeed, “the trial court may even award sole custody to a plaintiff without evidence that children were abused.” Based on the above, therefore, the father’s appeal of the PFA order was dismissed.

Despite his lack of success in the PFA matter, the father had better luck in the custody matter. With regard to the custody matter, the father argued that the trial court finding him in contempt of a custody order on a sua sponte basis violated his due process rights. No party filed a petition for contempt of custody, and he never received any notice that the trial court hearing a PFA petition would also decide a custody petition. The court noted that the trial court entered a finding of custody contempt “without warning at the conclusion of the hearing regarding the mother’s PFA petition.” Indeed, the father claims he never had opportunity to even present evidence on the custody matter.

The court ruled that despite the fact that the custody and PFA matters are “interrelated,” they are indeed “wholly separate matters.” The father was not afforded any indication that he would have to defend against an allegation of custody contempt in the context of a PFA. The record confirmed the father’s claim that he was not even allowed an opportunity to be heard on the contempt matter. In light of the above, the court held that as father has no notice that custody contempt would be at issue, and not given any opportunity to be heard, the trial court did, in fact, violate his due process rights; therefore, the custody contempt order was vacated.

When litigating PFA matters, practitioners should keep this decision in mind as Superior Court has made it clear that not only can past abuse be presented at PFA hearings, but nonparties can, if the circumstances are right, be included as part of the resulting PFA order. Of course, this matter is also a great reminder that parties are always entitled to notice of the issues to be presented at a hearing and that they should have the opportunity to be heard and defend themselves from the same.

James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.

Published in The Legal Intelligencer on September 28, 2020 and reprinted in the Pennsylvania Family Lawyer in its Winter 2020 edition (Vol. 42, Issue No. 4).

Pa. Superior Court: Family Court Notice Must Be Meaningful

Although there are standard forms for various pleadings and motions for family matters, they should certainly not be considered formalities or merely boilerplates. In the matter of T.L.G. v. J.D.G., the Pennsylvania Superior Court drove home the importance of pleadings and motions in providing the opposing party notice of what is at issue when going to a family court hearing.

In T.L.G. the parents of two children were subject to a stipulated custody order. One of the two children subject to this order unfortunately suffers from various mental health issues. Her parents both agreed to enroll their daughter in a residential program in North Carolina. At the conclusion of her program in the residential facility, she had the option to enroll in a therapeutic boarding school (which was recommended by the professionals at the residential program), or, in the alternative, she had the option to enroll in a standard public school with in-school and out-of-school therapeutic services. The parents disagreed over where to enroll the child; the child’s mother wanted to follow the recommendations while her father wanted to send her to a public school with additional services.

As the parents were unable to overcome their impasse regarding where to enroll their daughter, the mother filed a petition for special relief requesting the court to enter an order requiring the parties to follow the recommendations of the mental health professionals at the residential program. Accordingly, the court entered a scheduling order that set a hearing date “in consideration of the within petition.”

At the day of the hearing, the judge before whom the hearing took place opened the hearing by announcing that the order he would enter would likely be one that awarded sole legal custody (in the areas of education and mental health issues only). The judge ultimately entered an order granting the father sole legal custody (limited to education and mental health issues), and the mother timely appealed this order to the Pennsylvania Superior Court.

On appeal the mother argued that the trial court abused its discretion and violated her due process rights when it entered an order modifying the custody order (by changing legal custody) despite the fact that there was no petition to modify custody filed by either party.  Instead, the mother argued, her petition simply requested an order to resolve a single discreet issue of dispute between the parties, and the trial court’s order should have reflected that.

In ruling on the mother’s appeal, the Superior Court first noted that “notice and an opportunity to be heard are fundamental components of due process.” Furthermore, the court further noted that notice to a party must be provided within a meaningful time in a meaningful manner. Citing the Pennsylvania Superior Court case of Langendorfer v. Spearman, 797 A.2d 303 (Pa.Super.2002) (which in turn cited Choplosky v. Choplosky, 584 A.2d 340 (Pa.Super.1990)) the T.L.G. court also indicated that “if the parties do not receive proper notice that custody is at issue, a trial court cannot ‘assume that the parties had either sufficiently exposed the relevant facts or properly argued their significance.’”

While filing a petition to modify custody is typically the appropriate manner by which to request a custody modification, the court recognized that a trial court, under the right circumstances, may modify a custody order when it is in the best interests of the child, even if a petition to modify had not been filed. The court clarified, however, that such circumstances are only “if notice of the proceeding adequately advises a party that custody will be at issue, a court may entertain the request to permanently modify a custody order after hearing in that proceeding.”

When reviewing the facts of this matter, the court observed that mother’s petition for special relief does not request any modification of the custody order at all. It merely requests the trial court to adjudicate the discreet issue of where their daughter should be enrolled. Furthermore, the court also observed that the trial court’s scheduling order, quoted above, did not reference the potentiality of a modification of custody.

Based on the above, the Superior Court ruled that mother did not have proper notice that custody modification would be an issue at a petition for special relief hearing. In addition, the court did not believe the trial court judge’s opening statement at the hearing that legal custody may be modified constituted notice at a “meaningful time” or in a “meaningful manner.” In the court’s view, requiring the mother to make an objection on the record against the judge’s statement giving her last-minute notice that modification would likely be at issue (indeed, there was not even notice that it would definitely be an issue) is not sufficiently advanced notice to the mother to enable her to prepare or properly advocate. Indeed, the trial court did not even inform the parties that it would, in fact, modify legal custody until it issued its order after the hearing concluded.

In light of the above, the court ruled that the trial court abused its discretion and violated the mother’s due process rights when it awarded the father sole legal custody over educational and mental health matters despite the fact that neither party filed to modify the custody order. The court ruled that the mother did not receive proper notice that the custody order could be modified, vacated the trial court’s order, and remanded the matter. This decision makes it clear that court filings, and the court notices that follow from them, must be specific and provide adequate notice to the parties in order to ensure and protect a party’s basic due process rights.

James W. Cushing is senior associate at the Law Office of Faye Riva Cohen and managing attorney for Legal Research Inc., and sits on the executive committee of the family law section of the Philadelphia Bar Association.

 

PA Superior Court Says QDRO’s Take Effect Upon Execution of Marital Agreement

Conway v. Conway v. City of Erie Police Relief and Pension Association, 209 A.3d 367 (PA Super. 2019)

Brief Summary of the Facts:

Michael Conway (“Husband”) and Julie Conway (“Wife”) were married on July 12, 1991 and separated in August 2007.  Husband was employed as a police officer and filed for divorce on July 28, 2009. The parties executed a Marital Settlement Agreement (“MSA”) on Aug. 19, 2016, that directed the parties to prepare, execute, and file a Qualified Domestic Relations Order (“QDRO”) to allow Wife to receive her marital share of Husband’s pension. At the time of the execution of the MSA, Husband’s pension plan stated, with regard to a QDRO, “a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.” A divorce decree was entered on Aug. 22, 2016, that incorporated the MSA. On Aug. 23, 2016, the municipality for which Husband worked amended the pension plan to read “a former spouse of a Participant shall not be treated as the spouse or surviving spouse for any purposes under the Plan,” (emphasis added). Wife submitted the QDRO to the pension plan administrator on Aug. 29, 2016, which denied the QDRO on the basis that as it was filed after the Aug. 23, 2016 pension plan revision and is inconsistent with the same. Wife filed a Motion for Entry of QDRO, which was denied by the trial court, prompting Wife to appeal to Superior Court.

Issue:

Did the trial court err by failing to enter the QDRO submitted by Wife to secure her post-divorce rights to Husband’s pension when the MSA and Divorce Decree were both filed/entered and in effect prior to the revision to the pension plan? Holding A QDRO is an order “which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan.” A QDRO merely implements the terms of a preexisting MSA and does not in itself create new rights or terms. In the instant matter, the MSA was entered and incorporated into a Divorce Decree before the pension plan was revised; therefore, as the QDRO only serves to recognize and implement settled rights, it is enforceable as the underlying MSA predates the pension plan revisions. The denial of the QDRO amounts to an unlawful ex post facto application of the revised pension plan. Based on the above, the court directed the QDRO to be entered.

Comments/Impressions:

The court also pointed out that the objective of the Divorce Code “is to effectuate economic justice” for the parties to a divorce. In the court’s estimation, to rule against Wife “would deny [her] the benefit she bargained for and would cause an unfair and severe injustice concerning the parties’ settlement of their existing rights” and would be “contrary to the goal of achieving economic justice.”

Originally published in the Pennsylvania Family Lawyer in Volume 41, Issue number 3 (Autumn 2019)

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

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 and reprinted in The Pennsylvania Family Lawyer in Volume 41, Issue No. 4 which you can see here.

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.

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.

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.

Superior Court Ruling Gives Hope to Custody-Seeking Grandparents

Pursuant to 23 Pa.C.S. Section 5324, grandparents and great-grandparents, if they meet the statutory criteria, may be awarded legal and physical custody of their grandchild(ren) (or great-grandchildren). Typically, grandparents assert their potential custodial rights in opposition to the rights of the parents of the children. In some situations, however, more than one set of grandparents may seek to exercise their custodial rights at the same time. How is that conflict resolved? The recent Pennsylvania Superior Court case of G.A.P. v. J.M.W. v. S.J. and R.J., 2018 Pa.Super. 229 sheds some light on how such a matter could be handled.

In G.A.P., the father of the child has a history of substance abuse and also a criminal history, and was alleged to have committed sexual abuse against the child. Similarly, the mother of the child also has a history of substance abuse. The child has lived, from time to time, with the maternal great-grandparents over the course of his entire life, and has lived continuously with them since 2015.

In the summer of 2016 the great-grandparents filed for custody of the child on the basis that he had been living with them continuously since October 2015 and asserted that he was unsafe when in the custody of the father. The trial court, on an emergency basis, awarded the great-grandparents sole physical custody of the child and suspended the father’s partial physical custody, and an agreement was reached with the mother awarding her supervised physical custody of the child. At the end of 2016 the trial court awarded the great-grandparents and the father shared legal custody, the great-grandparents primary physical custody, and the father supervised physical custody. The mother was not awarded anything as she failed to appear for the hearing.

In the spring of 2017 the great-grandparents filed a petition for special relief requesting the father be drug tested and have his custody modified to supervised visits only, on the basis that he allegedly had relapsed into drug use. As a result, the trial court suspended the father’s unsupervised partial physical custody and replaced it with supervised physical custody.

Not long after the father’s custody was reduced, the paternal grandparents filed a petition to Intervene and requested physical custody of the child. The grandparents asserted that their petition was filed pursuant to 23 Pa.C.S.A. Section 5324(3)(iii)(B) which permits grandparents to file for custody of their grandchildren if “the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.”

In response, the great-grandparents filed preliminary objections against the grandparents’ petition to Intervene, asserting that the grandparents did not have standing as, allegedly, the child was not “currently” at substantial risk. The trial court agreed and dismissed the grandparents’ petition to Intervene for lack of standing, leading them to file an appeal to Pennsylvania Superior Court.

During the litigation of the petition to Intervene, the great-grandparents conceded that the grandparents had a relationship with the child that began with the consent of a parent, and were willing to assume parental responsibility over the child. In other words, the great-grandparents admitted that the grandparents essentially met the other requirements of Section 5324 except, in their view, the requirement that the child be currently substantially at risk.

The grandparents argued that the risk to the child, by the plain language of the statute cited above, is due to “parental abuse” specifically and, therefore, the claim that the great-grandparents are not a source of risk is irrelevant. Furthermore, the “grandparents also argued that the purpose of the statute is to grant grandparents standing in custody matters, not ‘to create a situation where grandparents are essentially in a race to file to receive standing’ because the grandparent who files first is the only one able to obtain standing in a custody matter.”

The Superior Court agreed that Section 5324 confers standing upon grandparents when the child is substantially at risk “due to parental abuse, neglect, drug or alcohol abuse or incapacity.” In its view, these words are clear and unambiguous and make no exception for a child’s potential custodial situation at a given time. In the court’s words “the plain language of the statute confers standing to grandparents when a child is substantially at risk due to ongoing parental behaviors.”

Upon review of the trial court record, Superior Court noted that the conditions required by Section 5325—including the risk factors—were present to grant the great-grandparents standing. Superior Court determined that there was nothing to suggest that the risk created by the parents had changed or somehow subsided. Significantly, the court observed, as the parental rights of father and mother have not been terminated or relinquished, either or both father and mother could seek (additional) custody of the child at any time. As a result, the ongoing risk from the parents is still ongoing.

Finally, it is in Superior Court’s opinion that the General Assembly did not intend, by its adoption of the specific language in the statute, to create a so-called race-to-the-courthouse standard by which the (great) grandparent who files first gets awarded custody at the expense of the others. Instead, the Superior Court reasoned, the court should have the opportunity to consider all possible or viable options in order to decide how to allot custodial rights according to the best interests of the child at issue. As a result, Superior Court reversed the trial court’s sustaining of the great-grandparents’ preliminary objections and remanded the case back to the trial court.

This case should provide practitioners the justification, and potential custodial grandparents hope, that they can pursue potential custodial rights over their grandchildren even if others who are in a similar state of life or situation (e.g., another set of grandparents) seemingly have done so already.

Originally published in The Legal Intelligencer on October 2, 2018 and can be found here and republished in the December 2018 Pennsylvania Family Lawyer and can be seen here.

Following the ‘Wiseman’ Standard in Pa. Custody Battles Is Unwise

Although the so-called Wiseman standard, the standard by which shared custody arrangements were determined, stood for many years, the recent Pennsylvania Superior Court case of P.J.P. v. M.M., 2018 Pa. Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

In the matter of P.J.P., a custody case, the father appealed a decision in the trial court regarding his petition to modify a custody order that he believed was not sufficiently favorable for his custody goals.

The father and the mother are a divorced couple who obtained a child custody order in April 2016. This order granted the mother primary physical custody of the child. In January 2017, the father sought more custody, specifically shared physical custody, and filed a petition to modify.

At the trial, in August 2017, the court made many findings of facts that are directly relevant to its ultimate decision to deny granting shared custody to the father. For example, when the mother has custody she sends the father many photographs and videos and encourages the child to call the father. By contrast, the father does not want to call the mother during his custody times and sends no photographs and videos to the mother. The mother further claimed, and the father admitted, that he has insulted the mother in the presence of the child. He also admitted to telling the child to be sure to look up the instant case on Google Scholar when he is older to know what happened during the case. The mother is also conscientious in ensuring that the father has nice gifts from the child for holidays and such, while the father makes only modest efforts to reciprocate. The parties also had disagreements over the procedure and process for dropping the child off at preschool in the morning. The mother claimed the father refused to get the child ready and just dropped him off at her house, while the father claimed the mother “unilaterally” changed the procedure. Co-parenting counseling was also attempted by the parties. Unfortunately, while the mother was trying to fully invest herself in said counseling, The father refused to meaningfully participate, and the counselor believed the counseling was “not going anywhere.” Of course, the father has a different interpretation of much of the above, but the court made its findings, which favored the mother, after a complete review of the facts, testimony and evidence.

On appeal, the father challenged the denial of shared custody, arguing it was contrary to the best interests of the child. The Superior Court first noted that the trial court made certain credibility determinations that were within its discretion. The court then mentioned that child custody is governed by 23 Pa.C.S.A. Section 5328, which lays out 16  factors for the court to consider when making a custody determination. Superior Court observed that the trial court analyzed each factor and noted that most were either inapplicable or weighed equally for both; however, there were four factors (namely the likelihood to encourage and permit contact with the other party, availability of extended family, attempts to turn the child against the other parent, and the level of conflict and willingness to cooperate with the other party) which weighed heavily on the mother’s side. No factor weighed heavily on the father’s side.

The father argued that the trial court abused its discretion by failing to apply the Weisman standard. In Weisman v. Wall, 718 A.2d 844 (Pa. Super.1998), the court ruled that courts must make four findings when ruling on shared custody “both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for their children; both parents must evidence a continuing desire for active involvement in the child’s life; both parents must be recognized by the child as a source of security and love; a minimal degree of cooperation between the parents must be possible.” The father further argued that since he and the mother, in his view, meet the above four factors, shared custody should be awarded.

Superior Court ruled that the father’s reliance on Weisman is misplaced. As noted above, Weisman was decided in 1998 while Section 5328 became law in 2011. The court does not believe the difference between Weisman and Section 5328 is trivial. Specifically Weisman “required the court, before awarding shared custody, ‘to make at least a minimal finding that the parties were able to cooperate before awarding shared custody” while, under Section 5328, the court “must determine the best interest of the child by considering all relevant factors, including but not limited to, ‘the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.”’

Superior Court noted that the plain language of Section 5328 contradicts Weisman. Unlike Weisman, the court is not obliged to make any specific findings before awarding shared custody. Instead, the court must consider all 16 of the relevant factors, and poor cooperation need not be dispositive. In sum, therefore, Superior Court specifically described Weisman as obsolete.

Finally, the court explained that its citing to Weisman in the recent case of R.S. v. T.T., 1133 A.3d 1254 (Pa.Super.2015) does not belie the above analysis. In R.S., the court used the Weisman factors to supplement its own analysis where it seemed Section 5328 did not appear to lead to a reasonable conclusion in light of the available evidence. Moreover, the court in R.S. never once said trial courts “must” make Weisman findings. Instead, Weismanmerely holds persuasive value as the its factors have been assimilated into Section 5328.

Upon full review of the decision, it appears that P.J.P. has hammered the final nail into the casket of the Weisman analysis. Weisman, for all intents and purposes, no longer appears to be the law for Pennsylvania child custody.

Originally published in The Legal Intelligencer on July 5, 2018 and can be seen here and reprinted in the Pennsylvania Family Lawyer in September 2018 and can be seen here.

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