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Sole Legal Custody Means Solo Decision-Making

In the matter of M.P. v. M.P., 54 A.3d 950 the Superior Court of Pennsylvania clarified the extent of authority of a parent who enjoys sole legal custody s/he has over a child.

In M.P., the mother of the child at issue in the case is from Ecuador.  Most of mother’s family, including her own parents, still reside in Ecuador.  Mother was granted primary custody of the child in July 2009 and Father was awarded supervised visits for two hours per week.  Despite receiving such minimal custody, Father did not take advantage of it to spend time with his child.  In or about November 2011, after a hearing, Mother was awarded sole legal custody of the child.  Mother filed a petition to permit her to take the child to Ecuador for three weeks, a trip which Father opposed.  The lower court entered an order prohibiting Mother from taking the trip to Ecuador which led to Mother filing an appeal to Superior Court and it is the Superior Court’s decision that is the focus of this article.

Mother wanted to take the child to Ecuador as it is her own ancestral home and most of her family lives there.  It was not feasible for Mother’s family to come to the United States as there was testimony that Mother’s parents would have difficulty in securing visas to come to the United States and Mother’s mother has health issues which makes flying difficult for her.

Father opposed Mother’s proposed trip to Ecuador as he views Ecuador as a third-world nation filled with potentially dangerous diseases and crime.  He also had concerns about the compatibility of the child’s health insurance coverage with Ecuadorian hospitals and the difficulty retrieving the child if something unfortunate happened to the Mother.

The lower court, by its own volition, investigated international law and the terms of the Hague Convention regarding international custody arrangements and had concerns regarding Father’s options to retrieve the child if Mother failed to return her to the United States.

When reviewing this matter, the Superior Court reversed the lower court’s decision and permitted Mother to go to Ecuador with the child for her proposed three week trip.

The Superior Court first looked at what it means for a parent to have sole legal custody.  Legal custody is the right and ability to make major decisions for the child.  Sole legal custody is the granting of one parent exclusive and final right to make major decisions; indeed, specifically exclusive from the other parent.  The Superior Court ruled that the lower court, by allowing Father to block Mother’s trip to Ecuador, enabled him to undermine Mother’s sole legal custody, and, essentially, render it meaningless.  As a result, the Superior Court ruled that if a party has sole legal custody, the other parent cannot move to prevent it from being exercised but for a formal petition to modify the custodial arrangement.

In terms of the lower court’s reliance upon international treaties and the Hague Convention, it is notable that Father did not raise them at the hearing but the lower court took judicial notice of them.  Regardless, the Superior Court noted that it is not unusual for a court to take judicial notice of such things, so the lower court’s reliance upon them was not objectionable, at least in principle.  Instead, the Superior Court took issue with the fact that the lower court relied on that information after the hearing had concluded and without notice to the parties.  The Superior Court ruled that a party has the right to be heard as to the propriety of a court taking judicial notice of an issue, especially one as critical as international law.

Based on the above, the Superior Court reversed the lower court’s decision, ruling that sole legal custody cannot be undermined or otherwise disturbed without an order altering the custodial arrangement and a court taking judicial notice of an issue must indicate doing so on the record and allow the parties involved to address it.

Originally published in The Legal Intelligencer on March 16, 2015 and can be found here and reprinted in Volume 37, Issue No. 3, September 2015 edition of the “Pennsylvania Family Lawyer” (see here).

Pa. Justices Clarify Evidentiary Standard for Child Abuse Registry

The Pennsylvania Supreme Court weighed in on the burden of proof required to place someone onto the statewide ChildLine Registry (“Registry”) in the matter of G.V. v. Department of Public Welfare, et al., 91 A.3d 667 (2014).

In September 2009 the Lancaster County Children and Youth Services (“CYS”) received a referral alleging that Plaintiff sexually abused his sixteen (16) year old niece, of who he had custody. After an investigation, CYS filed an “indicated” report against Plaintiff upon finding substantial evidence that Plaintiff had abused his niece.

Upon the finding that Plaintiff abused his niece, he was listed on the statewide Registry pursuant to 23 Pa.C.S.A. § 6301-6386. Subsequently, Plaintiff sought the expungement of his name from the Registry through DPW. DPW denied his request to expunge his name from the Registry and he appealed to an administrative law judge (“ALJ”). After a hearing before the ALJ at which several witnesses testified against Plaintiff, the ALJ concluded that the “indicated” report was supported by substantial evidence and, therefore, denied Plaintiff’s appeal. Ultimately Plaintiff appealed to the Pennsylvania Commonwealth Court which vacated the ALJ’s decision on the basis of using an improper evidentiary standard, and remanded the matter back to the ALJ.

The Commonwealth Court agreed that there was substantial evidence but further noted that there was no statutory direction as to what standard of proof is required to be placed onto the Registry and ultimately ruled that clear and convincing evidence is required to be placed onto the Registry. The Commonwealth Court’s decision was appealed to the Pennsylvania Supreme Court and it is that appeal which is the subject of the case described herein.

The Supreme Court noted that an indicated report is warranted if there is substantial evidence, which is defined as “evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.” This is in contrast to the clear and convincing standard urged to be applied by the Commonwealth Court and the Plaintiff, which is defined as “evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Customarily, the clear and convincing standard is applied when a person’s “individual interests at stake in a state proceeding are both particularly important and more substantial than mere money” and especially when there is a potential for “significant deprivation of liberty or stigma.”

After an indicated report, and a placement of a person onto the Registry, that person must report his placement onto the Registry whenever he accepts some sort of position (whether through employment or volunteer work and the like) where he would have contact with children. In its review of the applicable case law the Supreme Court established that the substantial evidence standard is what has been historically used in cases such as the instant case despite an absence of a statutory directive to use that standard.

In its review of the Commonwealth Court’s decision, the Supreme Court acknowledged that the Commonwealth Court did not err in determining that the preservation of one’s reputation is protected under Pennsylvania’s Constitution. Nevertheless, it ruled that it did err by overestimating the significance of the Registry as something covered by the above-mentioned reputation protections as to warrant the application of the clear and convincing standard instead of the substantial evidence standard.

The Supreme Court pointed out that only a limited number of people in a limited number of circumstances could access the names on the Registry. Consequently, the Supreme Court suggested that the Commonwealth Court overstated both the potential and probability for disclosure of the information on the Registry as well as overstated the potential risk of the deprivation of a fundamental interest of someone on the Registry. As a result, the stigma that the clear and convincing standard is supposed to address is simply not present. In addition to the above, the Supreme Court found that the Commonwealth Court did not take appropriate consideration of the fact that the government has a legitimate interest in ensuring the safety of children.

Ultimately, in sum, the Supreme Court ruled that even though being placed on the Registry is significant, there is no legal justification to apply the clear and convincing evidence standard as opposed to the substantial evidence standard when deciding whether to place someone on it.

Originally published in The Legal Intelligencer on January 20, 2015 and can be viewed here.

Can a Parent Bargain Away Child Support?

When litigating a family matter, which generally involves the intersection of divorce, support and custody matters, practitioners and parties often try to find creative solutions to very sticky problems, many of which can have a significant impact on a person’s life. One way to attempt to bring a family matter to a resolution that some attorneys and parties consider, or even try, is to negotiate the payment of child support in consideration of gaining bargaining rights or negotiation room on some other issue, such as child custody or property distribution.

Agreements regarding the elimination of child support are generally found in matters where one parent is willing to give up all or almost all of his or her right to custody in exchange for being released from any obligation to pay support. For example, a common contract is for the custodial parent (most often the mother) to agree to not seek child support from the noncustodial parent in exchange for the noncustodial parent (most often the father) not seeking custody of the child.

Pennsylvania courts have, for the most part, deemed any agreement to bargain away a child’s right to support as against public policy and unenforceable; however there are a couple of exceptions. Pennsylvania courts have found, time and again, that a child has a right to receive child support and that a parent does not have a right to enter into a contract to avoid ensuring the support of that child. It should be noted, also, that the court has found (arguably through dicta) that, generally speaking, one cannot bargain away child support for a child resulting from a sexual relationship of any kind, including those involving so-called “one-night stands,” adultery or accidents (including when the woman deceives the man regarding her contraception use).

Despite the above, however, the courts have been consistent in ruling that men who donate sperm to allow for conceptions which are the result of anonymous and artificial insemination are, by definition, free from the obligation to pay child support. Similarly, and rather interestingly, the court recently ruled that men donating sperm for artificial insemination do not have to remain anonymous to the recipient of that sperm in order to be free from the obligation to pay support to the resulting child(ren). As long as the insemination process follows standard clinical procedures, the sperm donor will be free from the obligation to pay child support regardless of whether his identity is known to the mother.

Aside from artificial insemination, the only exception to the general ban on contracts that bargain away child support is an analysis into whether the child(ren) at issue are actually being supported without the potentially requested child support. The court has implied that the rule is not that one cannot bargain away child support but whether one can bargain away “adequate” child support. Of course, precisely what makes support adequate is decided on a case-by-case basis and depends on the economic realities for all of the parties involved. Therefore, a noncustodial parent can be released from the obligation to pay child support so long as the contract to do so was fair and reasonable, without fraud and coercion, and, most importantly, does not prejudice the welfare of the child(ren) at issue.

For example, say a woman has a child by one man out of wedlock but ultimately marries another man. Her husband is financially able to, and actually does, support his wife’s child from the other man. The woman and father in this scenario can enter into an agreement to release the father from the payment of child support so long as the child is adequately supported; therefore, the agreement will be enforceable against the establishment of a child-support order as long as this is the case. However, as soon as the husband discontinues the support of the child (say because of the divorce of the husband and mother) the agreement to release the father from a child-support obligation becomes unenforceable. The central issue of analysis is this: Is the child adequately supported by the custodial parent or some other source, absent the potential child-support order? If yes, then an agreement to bargain away child support is enforceable.

Cases to consider regarding the issues addressed in this article include: Miesen v. Frank, 361 Pa.Super. 204 (1987); Roberts v. Furst, 385 Pa.Super. 530 (1989); Kesler v. Weniger, 744 A.2d 794 (Pa.Super. 1999); and Ferguson v. McKiernan, 596 Pa. 78 (2007).

Originally published in The Legal Intelligencer Blog on September 27, 2013 and can be found here.

Alcohol Putting Unemployment Compensation to the Test

In the matter of Dillon v. Unemployment Compensation Board of Review, 2013 WL 2991042, the Commonwealth Court of Pennsylvania interpreted Pennsylvania Unemployment Compensation Law to include alcohol consumption within the meaning of 43 P.S. Section 802(e.1).

The Claimant in Dillon worked for the employer as a pipe fitter for about one (1) year. During that time, the Claimant tested positive in a random blood alcohol test and was provided a last-chance agreement in lieu of termination. Not long after the aforesaid test Claimant was subjected to another random blood test, tested positive again, and was terminated from his employment as a result of the positive test. Upon his termination, Claimant attempted to secure unemployment compensation benefits and was deemed ineligible due to having committed willful misconduct. Ultimately, the Court ruled that the Claimant is ineligible for unemployment compensation benefits. Strangely, however, instead of merely affirming the Board of Review and Referee’s findings that Claimant is ineligible, the Court embarked on what seems to be an unnecessary decision regarding which provision of the Unemployment Compensation law rendered the Claimant ineligible.

Under 43 P.S. Section 802(e), an unemployment compensation claimant is ineligible for benefits if he is terminated due to willful misconduct. The Court pointed out that as long as the employer in the instant matter can prove that the Claimant was aware of, and violated, a work rule (which the Court found the employer did prove), the Claimant could be determined ineligible for benefits. This seems to affirm the Unemployment Compensation Board of Review and Referee, yet the Court proceeded to rule that, although ineligibility could have been determined through the route just described, the Claimant was actually ineligible under 43 P.S. Section 802(e.1), which specifically addresses drug use.

The Court appeared to say that now that 43 P.S. Section 802(e.1) is available to use, it would not employ 43 P.S. Section 802(e) in drug and alcohol cases, even though the matter could reach same result. According to the Court, perhaps the most important application of 43 P.S. Section 802(e.1) over 43 P.S. Section 802(e) is that 43 P.S. Section 802(e.1) allows for ineligibility due to violation of a substance abuse policy absent any showing of willful misconduct.

43 P.S. Section 802(e.1) provides that a claimant can be determined ineligible for benefits if discharged for failing to pass a “drug test.” The issue clarified by the Dillon Court was whether alcohol, which is the substance abused by the Claimant, is a “drug” as contemplated by the aforesaid statute. The opinion of the Board of Review was that the language of the statute is clear: the word “drug” is used and not “alcohol,” therefore the Claimant cannot be deemed ineligible under 43 P.S. Section 802(e.1). In the Board’s view, if the legislature wanted to use the word “alcohol” it would have done so; as the legislature elected not to use it, it is not appropriate to read it into the law.

The Court, after an analysis which included looking at the definition of “drug” in both Black’s Law Dictionary and Webster’s Third New International Dictionary, concluded that alcohol can properly be considered a “drug” as the term is typically used and, indeed, read into the law. The Court further concluded, as a result, that the legislature intended to include “alcohol” as part of the definition of the word “drug” in 43 P.S. Section 802(e.1). Finally, the Court did not believe any analysis which would exclude alcohol from the definition of the word “drug” due to drugs being illegal and alcohol legal is persuasive. The Court pointed out that just as over-the-counter drugs are legal, but able to be abused, alcohol is also legal and able to be abused. In the Court’s estimation, it is the abuse of a substance that is relevant, not its legality.

In sum, then, while a claimant can be deemed ineligible for unemployment compensation benefits for violation of a drug and/or alcohol test on the basis of willful misconduct (pursuant to 43 P.S. Section 802(e)), the Court ruled that now that the statute is available, the ineligibility must now be pursuant to 43 P.S. Section 802(e.1) which speaks directly to issue of drugs.

Originally published in Upon Further Review on August 19, 2013 and can be seen here.

Is Working on the Sidelines Out of Bounds for UC?

As the economy remains precarious, unemployment compensation benefits remain vital to keeping many Pennsylvanians afloat. Of course, many applicants for unemployment compensation benefits attempt to make ends meet by doing some sort of job on the side, such as flea marketing or landscaping on the weekends for a few dollars here and there. The issue the courts have struggled with is attempting to determine whether that flea marketer or landscaper is an independent contractor or merely engaged in a sideline activity.

Under Pennsylvania unemployment compensation law, an independent contractor is considered to be self-employed and, therefore, ineligible for unemployment compensation benefits. An independent contractor is generally someone who is free from the control or direction of an employer but, rather, works for himself or herself. As the independent contractor is not an employee, he or she is ineligible for benefits if no further work is available under his or her contracts. The issue, of course, is that someone who works at a sideline activity is also similarly free from the control or direction of an employer. Would that person be similarly ineligible for benefits? The courts have generally indicated that engaging in a sideline activity does not render one ineligible for benefits, but the precise definition of what constitutes a sideline activity is still being developed.

The primary lines of distinction between independent contracting and a sideline activity include when the activity was first undertaken and whether someone is “customarily engaged” in the activity per the language of 43 P.S. Section 753(l)(2)(B) defining “employment.” The courts have ruled that earning money or engaging in a money-making enterprise for a few hours per week or month does not necessarily equate to independent contracting. The question is, after findings of fact, whether someone could be considered “customarily engaged” in the sideline activity. In fact, it is significant to note that a potential claimant engaged in a sideline activity may even consider himself or herself an independent contractor; however, this claimant’s self-identification is irrelevant, as the analysis is exclusively based on the factual underpinnings of each case.

For example, if someone, say a truck driver, loses his job and elects to work a few hours landscaping thereafter in order to earn some money to tide him over, does that make him a contractor or engaged in a sideline activity? It all depends on whether this former truck driver is now pursuing a new business venture as a landscaper or just trying to earn a little money to scrape by before he can engage actual employment. Obviously, the analysis to determine the difference between a new business venture and sideline activity is extremely fact-intensive and focuses on the number of hours spent at the work done and the amount of investment the person makes into the work. For instance, does this former truck driver help mow his neighbor’s lawns for $20 a cut every other week, or has he established “Ryan’s Lawncare” and purchased materials and advertising toward it? It likely goes without saying that the former is a sideline activity, which would not render him ineligible for unemployment compensation benefits, while the latter would be considered establishing a business (i.e., becoming an independent contractor), rendering him ineligible for benefits.

The other relevant issue in determining whether something is independent contracting or a sideline activity is when and how the work was established. If it began while one already had an established full-time job, it is more likely to be considered a sideline activity. For example, after a few years of practice, a full-time accountant may discover he enjoys doing Web design in the evenings or on the weekends for a few hours here or there for limited compensation. Would he be considered as customarily engaged as a Web designer? The likely answer would be no, as the Web designing a few hours per week arose while he was otherwise employed as a full-time accountant as opposed to after he became unemployed from his position as an accountant. Further, the accountant’s income and time is overwhelmingly because of being an accountant and, more than likely, when asked what he does for a living, he identifies as an accountant.

Finally, it should be noted that the precise number of hours or rate of compensation is not necessarily relevant to the analysis as neither is specified by the law. Take our accountant above as an example: If his five or six hours per week of Web design expanded to 10 or 15 after he lost his job as an accountant, the Web designing would likely remain a “sideline activity” and not render him ineligible for benefits. As far as compensation is concerned, someone who works on commission and, therefore, has compensation delayed for months, perhaps weeks, could be considered employed despite having no compensation for a long period of time, as compensation is contemplated in the future for the present work.

As the cases continue to be decided on the issue, the definition of “customarily engaged” will become more refined and clear. The fact pattern of each subsequent case will further refine and crystallize what a sideline activity is and help guide potential claimants in deciding whether to undertake such an activity. Of course, before embarking on an activity that could potentially risk one’s eligibility for unemployment compensation, it is always recommended that a claimant consult with an attorney first.

Some cases on this issue that the reader may find helpful include the following: Crocker v. Unemployment Board of Review, 63 A.3d 496 (Pa.Cmwlth. 2013), Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa.Cmwlth. 2012), and Kelly v. Unemployment Compensation Board of Review, 840 A.2d 469 (Pa.Cmwlth. 2004).

Originally published in The Legal Intelligencer Blog on August 2, 2013 and can be viewed here.

Employees Beware of Complaining

Check out Faye Cohen’s blog post “Employees Beware of Complaining ” on her blog Toughlawyerlady here.

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