judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “government”

Reasoned Voting

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Keeping in mind that this site does not engage in party politics, I still feel prompted to share something in the context of the up-coming election in the U.S. Although most of this will discuss the political climate in the U.S. I also send this out to any readers “across the pond” in the U.K. as they approach the very important vote on whether or not to remain in the E.U. Distributism is based on certain philosophical principles which originate in a scientific view of philosophy. It has become all too common in our political environments to use fear tactics to try and convince people to vote a certain way. These tactics can sound reasonable, but are truly an attempt to get you to abandon reason. Therefore, I want to present certain principles of reason as I think they apply to deciding how to vote.

The philosophical principles of reason which come down to us from the great minds of the past like Aristotle and Saint Thomas Aquinas are those precepts which we must follow when applying reason to anything. The failure to do so will ultimately lead us to accepting absurd things. They are employed by all of our natural sciences. They are employed by all of our ethical reasoning. They are crucial to fulfilling our capabilities as rational beings. Unfortunately, some people throw around some of these principles in an incorrect or incomplete manner. Because we no longer learn true philosophy (even philosophy students seem to spend more time learning about philosophers – both good and bad – than about the actual science of philosophy) many people are ill equipped to see that these are false applications.

“Choosing the lesser of two evils”

This is a frequent claim used as an election draws near. In the U.S. It has long been used by pundits for the Republican party and has recently been used more by those of the Democrat party. The failure to nominate a candidate their voting base can really support has forced them to use this claim. They essentially say, “we know you think our candidate is bad, but he’s not as bad as their candidate.” This call to choose the “lesser” of two evils is usually followed by the next claim.

“A vote for x is really a vote for y”

This is a double-attack on your reason. Not only is your decision not to vote for their candidate or policy wrong, but you will somehow be guilty for the fact that the other candidate or policy won. In essence, the claim is that by voting other than the way they want, you are actually choosing what (presumably) neither of you want. This is used by both of the major parties in the U.S. as an attack against anyone who considers a third party option. It is based on the premise that the candidate or policy you want has no chance of winning, which leads us to the next claim.

“Don’t let the best be the enemy of the good”

Politics is the art of compromise, so why don’t you just compromise and vote for us? Since your position or candidate has no chance of actually winning, you should back down a little and vote for us. By doing so, you’ll get at least some of what you want instead of “wasting your vote.”

All of these arguments sound reasonable, but are actually not so, and a serious look at the principles of reason will reveal why.

When people use variants of the “lesser of two evils” argument, keep in mind that this is only a partial statement of the actual principle of reason. The actual principle is, “If one cannot avoid doing one of two acts, from both of which will follow an evil effect, one is obligated to choose the lesser of the two evils.”  Note that the premise here, which is fundamental to the entire principle, is that you cannot avoid doing one of the two acts. For this to apply in the context of an election, you would have to be constrained to only choose one of two candidates and have no other option – you must vote and you must vote for one of the only two candidates presented to you. Is this the actual case in our elections? Do you really only have two choices? I am not speaking of the so-called “practical” choices, by which is meant those choices generally accepted as having a chance to win. If there is in fact another option, then you are not limited by the constraint of the principle, so it simply doesn’t apply. Actually, if one were to insist on applying it to the case of an election, a reasoned expansion of this principle would be that, in the case of more than two choices, you must choose the one from which will follow the least evil effect. Don’t forget that, when electing candidates in the U.S., there is usually a blank line where you can write in the name of a better choice than the ones being presented.

This leads us to the next claim. Is it true that choosing something other than the two “practical” choices is equivalent to choosing one of them? The answer is obviously no. They say that the only choices are A and B because C has no chance of winning. Therefore, if you vote for C, you are effectively giving the election to whichever option they don’t want from the choices of A and B. This is nonsense. They are trying to shift the blame to you for the fact that they didn’t present a candidate you would want to support. They are trying to blame you for all the others who also didn’t want to support their view. This seems to be a mangling of the principle which states, “Things that are identical with a third are identical with each other.”Your actual responsibility in an election is to vote for the candidate or position you think should win. What you vote for represents what you choose regardless of the outcome. You are not to blame for the votes of others.

This leaves us with the only argument that actually deserves any consideration. “Don’t let the best become the enemy of the good” is inherently incorrect, but it can actually be applied in a way that doesn’t compromise the principles of reason. However, this argument must be properly understood in the light of those principles to determine if it actually applies to the current choices.

First of all, using the terms employed, the “good” must always be directed toward the “best” or it fails to be good. (“Every agent acts for the sake of an end.”) Therefore, one can accept the merely “good” for now, but only on the condition that is a movement toward the “best.” If this is not the case, then you would be violating the principle which states, “It is never lawful to reject a greater good for a lesser one.” The lesser good can only be accepted as a means to achieving the greater good, and never as an end itself. This is the essence of political compromise. Realizing that achieving the “best” may not currently be politically possible, achieving the “good” at this time with the intention of continuing to work for the “best” may be prudent.

Another consideration for this argument must be kept in mind. At what point does continual compromise from the “best” end up being an acceptance of the merely “good?” If you keep voting for an inadequate candidate on the grounds that “we can’t let the other party win,” what incentive will your party ever have to stop presenting inadequate candidates? If you continue to agree to legislation that falls short of what you really want, what are your chances of ever getting the legislation you really want? The pundits accuse those who choose to make a stand with their vote of wasting it, but the purpose of voting is to try and get the change you want. What vote could be more wasted than when you vote for something you don’t want?

At what point do we wake up to the realization that the political machines of these parties are actively engaged in saying what their base wants to hear just to secure votes, but don’t actually mean those things? How many times to we have to see them fail to even try to accomplish what they tell us they will before we accept the fact that it really isn’t all the fault of the other party? Remember that this sort of compromise is only acceptable if it is both prudential and will actually help to move from the “good” to the “best.”

A final consideration on this kind of compromise is that we have to examine the risks of the other side of the compromise. It is not enough to look at what we’ve gained, we need to look at what we’ve potentially lost through the compromise.“It is never lawful to take a risk with the right of another.” “It is never lawful to do an evil act to accomplish a good end.” “A good intention does not justify the use of an evil means for the end in view.” If your side of the compromise would fall into any of these categories, then the compromise cannot be made. Remember that your vote represents you. Your beliefs and values. “All human acts must tend towards the good of man.”

I am also reminded of something posted by Ryan Grant. There is another claim that says that you have no right to complain if you don’t vote. Of course, this is also nonsense. The officials of government have a moral responsibility in the exercise of their office. This is true even if those officials are not democratically elected. Citizens always have the right to complain about injustices regardless of how those officials came to hold their offices. In some election campaigns, there were movements of people who wanted a ballot option for “none of the above” as a way of indicating their dissatisfaction with all of the candidates. However, if you believe that elections are useless, because of the corruption of the political parties, the media, the voting process, or the ballot counting process, then why should you bother to vote even to say “none of the above?” Justice in government is a human right, not one just for those who engage in the system of voting.

Finally, I would like to point out how ironic it is when I hear Republican pundits heap scorn on those who would even consider a third party candidate. They seem to forget that their party was once the upstart third party in a political climate dominated by two other parties. The “Grand Old Party” is significantly younger than its chief rival. Why is it that they don’t address the growing popularity of third party candidates among their voter base? The Republican party was propelled to electoral victory because the voting public got sick and tired of the fact that neither of the major parties of the time were putting forth candidates and positions that truly reflected their views. Well, the same thing is happening today in both of the major parties. It is common for pundits of both parties to lay the blame for an electoral loss on the votes “stolen” by a third party candidate. The truth is that these votes were not stolen because they didn’t “belong” to any candidate or party. They never “owned” our votes and they shouldn’t take them for granted. If they want our votes, then they should present candidates and positions we want to support. If they want to keep our votes, then those candidates better use their time in office actually trying to accomplish what they were elected to accomplish. In other words, voters need to remember that parties and individual candidates need to earn our votes, and need to keep doing so. If they fail to do this, then why shouldn’t we look elsewhere and be proud of doing so?

In their attempts to convince others to vote for a particular candidate, many people are using arguments that invoke the fundamental principles of reason from the philosophical sciences. Unfortunately, many of these invocations use these arguments in an improper way. I addressed some of the most common in a recent article titled Reasoned Voting. I recently came across another use of a principle of reason in support of voting for a particular candidate which, in the interest clear reasoning, I would like to address in this follow-up to that article. The principle is known as “Double-Effect.”

The main goal of these articles is not to convince or dissuade people about voting for a particular candidate or party. It is to foster a better understanding of the principles being invoked because an improper use of these principles can have bad results.

“A small error in principle can lead to a big error in conclusion.”

Doing something, even something good, for a bad reason is not something we should be willing to accept because that would be acting contrary to our nature as rational beings. Therefore, even if you continue to support a given candidate, it should not be because of a faulty application of the principles of reason.

Where the principle commonly called “the lesser of two evils” is used to decide between two choices, the principle of double-effect only applies to a single choice. It is the method used to determine if a particular choice can or cannot be made. Thus, we have seen questions like “can a Catholic vote for Trump/Hillary?” Some commentators have attempted to answer these types of questions pertaining to the upcoming election using the principle of double-effect, but I believe these attempts are a misapplication of the principle.

The principle of double-effect answers the question of whether or not a specific single act is permissible when it is known that the act will produce not only a good, but also a bad effect. In the context of the political election it is proposed that, because we know a candidate will do both good and bad things, double-effect applies to the question of whether or not we may vote for a specific candidate. However, I believe that this is a misunderstanding of the principle as it applies to the question at hand.

The principle of double-effect addresses the following question.

Given an act that that produces two effects, one good and one bad, can we do the act?

 

To determine whether or not a particular act is permissible, the principle of double-effect applies four conditions to the act and its effects to arrive at an answer. If all of the conditions are met, then the principle of double-effect applies and the act may be done. The conditions which must be met for double-effect to apply are these.

 

The act itself must be good, or at least indifferent.
Both effects must proceed immediately from the act.
Only the good effect may be intended.
There must be due proportion between the good and bad effects.

The first two conditions determine whether or not double-effect applies to a particular act. If not, the act must be examined in light of other principles of reason. The second two conditions answer the question of whether or not an act to which double-effect does apply may or may not be done.

A fairly common example of how the principle is legitimately applied is the question amputating a limb infected with gangrene. Amputating the infected limb will remove the threat to life, but it will also result in the loss of the limb. Can we amputate the limb?

First: The act is amputation of the limb. This act is indifferent because the goodness or badness of it depends on the end toward which it is directed.
Second: Both effects will proceed immediately from the act. The moment the act is performed, both the threat to life and the limb will be removed.
Third: We only desire the good effect. If we could remove the gangrene without doing harm, or with less harm, we would do so.
Fourth: The good of preserving life is greater than the evil of losing a limb.

From this we can see that the principle of double-effect applies to this case, and that the reasonable conclusion is that we may amputate the limb.

Those who attempt to apply this principle as an argument for casting your vote for candidate X seem to do so on the basis of campaign promises. Even though it is likely that X will do some things we consider bad, X has promised to do other things we believe are good. We believe there is due proportion between the good and the bad that X will likely do while in office. Therefore, they conclude, the principle of double-effect shows that we can vote for candidate X. I will explain two reasons why I believe double-effect just doesn’t apply to the question of your vote. Note that I am only addressing the question of whether or not double-effect applies to the question of your vote, there are certainly other factors that do.

Double-effect applies specifically to “an act that produces two effects, one good and one bad.” We are examining the effects of specific individual act, so the act in question must clearly be the cause of those effects. In the case of amputation, both effects are produced by the act of amputation – they are both unavoidable effects of the act and the act is clearly the cause of those effects. Can we say the same thing about your vote? Is your vote the cause of both the good and the bad that candidate X will do while in office? The answer is obviously no. You cast your vote based on various things like campaign promises and position statements, but your vote does not actually cause any of those things to actually occur. Whether candidate X keeps or breaks every campaign promise, whether X does exactly what you expect or the opposite of what you expect can not reasonably be attributed as an effect of your vote. It is an effect of the free will of the candidate while in office.

I know that some will argue that your vote is the cause of the candidate getting elected and therefore, by extension, it is the cause of what the candidate does in office. I maintain that double-effect still doesn’t apply even if we accept the argument. The principle of double-effect states that both effects must proceed immediatelyfrom the act. This is clear in the case of amputation. Both effects are immediate. They happen simultaneously and there is no delay between the act as the cause and its effects. In regard to your vote, none of the effects can be considered to proceed immediately from your vote. Even if we were to say that the effects in question will take place over a period of time, they don’t even start to happen when you cast your vote. The candidate won’t even get sworn in for two months after you cast your vote. X could refuse to be sworn in or die before doing so. Amputation guarantees that both the limb and the disease will be removed. Your vote does not even guarantee that candidate X will win the election. Clearly, double-effect does not apply to the question of your vote.

In the end, as stated in the previous article, you must exercise your prudential judgement. Faced with the fact that the candidate is not ideal, is it prudential to vote for X rather than one of the several other available candidates? Is it prudential to (once again) compromise on what you really want and vote for X as a step toward a greater good to be more fully achieved in the future? There are many factors to consider for this important decision. I hope that these articles will help clarify the good and bad points some are making on the subject. These decisions are unfortunately difficult and complex. The principles of reason exist to assist us in understanding the factors that go into making a good decision. It does not help if our thinking gets muddled by the improper application of these principles, even if those doing it have the best intentions.

Originally posted on June 16, 2016 (part one: see here) and August 18, 2016 (part two: see here).

Advertisements

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.

NBI Seminar: The Rights of Grandparents and Other Relatives

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

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

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

Thanks!

__________

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

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

(1) A parent of the child.

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

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

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

the child or under a court order;

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

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

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

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

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

alcohol abuse or incapacity; or

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

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

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

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

the home.

 

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

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

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

(2) [Unconstitutional]

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

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

Resources:

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

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

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

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

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

Thanks!

__________

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

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

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

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

C.     Questions of Paternity

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

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

Thanks!

__________

III.       CHILD CUSTODY AND VISITATION RIGHTS

B.   Motion for a Change of Custody or Visitation

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

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

 

 

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

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

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

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

Thanks!

__________

CHILD CUSTODY AND VISITATION RIGHTS

  1. A. Petition for Visitation and/or Custody

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

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

 

  • Elements of a Complaint

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

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

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

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

(1) partial physical custody;

(2) shared physical custody; or

(3) supervised physical custody.

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

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

The Process of Subsidiarity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Many critics of distributism claim that what we want to achieve would require the expansion of state power and that we really want an all powerful state. What we actually advocate is the decentralization of government power. We want to distribute the various powers of government as close to the local level as can be practically achieved. This is because we promote the principle known as “subsidiarity.” Subsidiarity states that,

“A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view of the common good.”                                      – Pope St. John Paul II

That sounds great, but how would it work?

Subsidiarity goes beyond the typical “states’ rights” argument put forward by the political conservatives of the United States of America. While some in the USA who argue for states’ rights might regard it as a necessary first step to further decentralization of government authority, others voice a “let the states decide” attitude which seems to indicate that their only real objection to certain government laws is the fact that it is the federal government imposing them. Their statements suggest that the same laws would be fine if imposed at the state level without any further decentralization of authority. Listening to some of their arguments seems to give the impression that they don’t really recognize that the centralization of power, even to the state government, makes government less democratic. The more power gets centralized, the more undemocratic the government becomes. They only seem to be concerned when the exercise of power crosses the line from state to federal authority. In reality, however, it is only at the local level that the average citizen really has a voice. Therefore, the more localized the authority, the more democratic the society.

The sad truth is that so many of us have become too accustomed to the idea that the higher levels of government is where problems really get solved. We pay more attention to state and federal elections than to local ones precisely because the authority which naturally belongs at the local level has been usurped by state and federal governments. “I will write my congressman,” and “I’ll take this all the way to the Supreme Court” became the reaction, and the reality, of how we view the political process. While we in the USA believe ourselves to be a bastion of democracy, we have allowed (and assisted) the gradual stripping of our democratic voice. This has gone beyond the making of our laws and the defending of our rights, but even to how we assist those in need. As a society, we have gotten to the point that we automatically look to higher and higher levels of government to resolve even local issues. It is sad, but it seems that most people believe that the higher the level of government, the broader its scope of authority.

Distributism, on the other hand, argues that the higher the level of government, the narrower its scope of authority. The question is how this can be applied in a practical and workable way. While there may be variations in application due to cultural differences in different regions, a basic outline can be presented as a starting point. The foundation of this outline is to understand the “orders of society” and their relationship to each other.

The “lowest” order of society is the family, not because it is the least important but because it is the most. It is the very foundation of society. Above that are religious, occupational and social groups which are free institutions for the mutual support and benefit of their members. The remaining “orders of society” would refer to the different levels of government starting with the local community and moving up from there, each fulfilling only those functions that, by their nature, cannot be fulfilled by the level immediately below it. From the distributist perspective, local issues should be handled as locally as possible. Even if an issue exists across a larger region, each locality should be left to direct how to handle it within its jurisdictional boundary to the greatest extent possible, even if assistance is needed from higher levels of society. This is a fundamental concept to understand about subsidiarity.

When an issue arises that needs to be addressed, the level of society where that issue arises is the natural point where the issue should be addressed. In cases where it cannot be addressed there, the members of that level would petition the next higher level of the orders of society for assistance. Therefore, if a family is in financial need and needs immediate assistance, they should naturally turn to those societal organizations like church, work association (guild) or other social organizations for assistance. If a particular vocation needs a school to provide training in the skills it needs, it should first look to the members of that vocational guild. If it cannot provide for itself, it can look to other guilds of the same vocation, or even discuss combining resources with other guilds to establish schools to meet their combined needs.

It is only if these first attempts cannot resolve the issue that governmental bodies should get involved, and then only by petition of the immediate lower level. If, for example, a lot of families in the community needed assistance and churches and other local associations found themselves unable to adequately provide that assistance, they could raise the issue to the city or to related organizations in other areas. If a city was not able to address an issue, it could ask nearby cities for assistance or raise the issue to the county. In this way, each level of society would render assistance based on the need asserted by the level immediately below it, and that assistance would not usurp any functions of the lower orders of society even if the higher order needs to coordinate the activities of the lower orders due to the nature of the situation at hand, like a natural disaster.

This process keeps as much authority as possible at the local level and, by doing so, preserves the ability of citizens to effectively curtail the usurpation of authority by higher levels of government. Because the greatest level of influence is the most local level, and because the individual citizen’s vote has its greatest influence at the most local level, this process preserves the greatest level of democracy for all.

Distributism vs. Globalism

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

There has been a tendency over the last several decades toward globalism. This goes beyond the so-called “global economy,” with its free trade deals favoring international banks and corporations. This trend has resulted in the formation of international bureaucracies imposing standards, if not laws, on otherwise sovereign states. While there was always some resistance to this tendency, it has nevertheless progressed to the point that there is now a growing movement of outright rejection. What was initially presented as a path toward peace and harmony is increasingly viewed by common citizens as a growing threat to their freedom and way of life. What is the position of distributism in relation to the idea of globalism?

Globalism is the idea of those who believe they should help direct the development of social, cultural, technological, or economic networks around the world through political influence, and who desire the establishment of international political bodies to govern on an international level. The idea is that, by having multiple people of various cultural and economic backgrounds come together to discuss issues, problems can be resolved effectively and peacefully. Since the resolutions of these bodies can only be effective if they are actually binding, these organizations have to acquire legally recognized legislative authority. This is gladly accepted by the promoters of these organizations who seem to assume that those who run these international legislatures will always see things the same way they do. They hardly ever seem to consider what happens if they don’t. They also don’t seem to care if the policies and laws they desire to establish are actually wanted by the people who will end up being subject to them.

The problem with placing such a wide-ranging authority in the hands of a political body with no political or cultural attachment to the people is that people from different countries have different cultures and customs. They are rightfully proud of them and reject efforts by “those who know better” to toss them aside in the wake of the globalist view of how things should be. They want their own way of doing business, of farming and manufacture, of protecting public health and the environment, of securing civil liberties, of running their schools, of deciding what should be taught in those schools and of deciding how to integrate immigrants into their society. They do not want people who do not share their views of culture and custom to make such decisions for them, and this is precisely what the globalists want to do.

The globalists “negotiate” a one-size-fits-all agreement which actually only appeals to those whose views have a majority representation in the international political organization. In other words, only the globalists really get to decide. This was a significant part of the movement in Great Britain to leave the European Union. The European Union started as a “common market” to work together to help the economies of the separate European countries. It has evolved into an international authority with its own flag, its own anthem, and its legislature makes laws that override the national and local laws of its member states. Even when the decisions of globalist organizations are not legislatively binding, their existence creates a great political pressure for states to comply even if the citizens of the state oppose them. For example, the United Nations not only told Ireland, a sovereign state, that it should change its abortion laws. The politicians in Ireland’s government, led by the U.N. instead of their own people, put it up for a vote. It was resoundingly defeated because the people of Ireland don’t want it. The United Nations even told the Catholic Church to change its religious doctrines according to its view of “child welfare.” There have been cases where globalist organizations have used economic pressure, like denying aide, to try and coerce countries to adopt unwanted policies. By moving the decision-making power further and further away from the people, the political process ultimately becomes less democratic as individual voices become less able to influence decisions that impact their daily lives.

Distributists, on the other hand, would not only promote a country’s sovereign right to direct its own affairs, we also promote that right for political regions and local communities within a country in accordance with the principle of subsidiarity.

“A community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view of the common good.”

This view provides a foundation for people to preserve their culture and customs and to direct their own lives, and does so while still making room for national assistance when and where needed. It is not an “isolationist” position. It is a view that does not exclude the idea of international cooperation in addressing wider issues, but it does not include relinquishing of sovereignty to permanent international organizations as part of the process.

The world is filled with various cultures and customs, and the people from those cultures who share those customs either love them or will change them on their own. There isn’t a one-size-fits-all way of life and of doing things. The purveyors of globalism, even if they don’t start out to do so, ultimately trample on the rights of the people they claim to be helping. The people who say we should “celebrate diversity” are the ones who end up trying to force everyone to be the same. The people who shout the loudest about tolerance end up being the most intolerant of all. They believe they are going to do good, but they end up establishing the very kind of repressive government they claim to hate, using the very tactics they villify. In the end, even though they want peace, they will cause rebellion because the people they claim to be helping will resent them for being oppressive overlords.

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.

Post Navigation