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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!

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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)
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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.

July 2018, “The Evangelist” Newsletter from St. John the Evangelist Anglican Church, Abington, PA

The Evangelist is the monthly newsletter of St. John the Evangelist Anglican Church in Abington, Pennsylvania.  The July 2018 issue of The Evangelist is now out which you can read here.

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

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 Super. 100, has officially declared the Wiseman standard obsolete and no longer applicable to Pennsylvania child custody matters.

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

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

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

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

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

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

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

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

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

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

May 2018, “The Evangelist” Newsletter from St. John the Evangelist Anglican Church, Abington, PA

The Evangelist is the monthly newsletter of St. John the Evangelist Anglican Church in Abington, Pennsylvania.  The May 2018 issue of The Evangelist is now out which you can read here.

March 2018, “The Evangelist” Newsletter from St. John the Evangelist Anglican Church, Abington, PA

The Evangelist is the monthly newsletter of St. John the Evangelist Anglican Church in Abington, Pennsylvania.  The March 2018 issue of The Evangelist is now out which you can read here.

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here and was reprinted in the Pennsylvania Family Lawyer for its March 2018 edition. (see here).

The Myth of the Pagan Origins of Christmas

It is that time of year again!

The idea that typical Christmas traditions – like Christmas Trees, Santa Claus, or even its date – all somehow derive from paganism is so common that it has become almost a truism.  The pagan source is either described as something the Christian Church coopted and Christianized or merely as something that has survived as a historical or cultural accident despite the influence of the Church in Western Civilization.

As it turns out, the assumption that Christmas traditions are just pagan holdovers may, indeed, not be based on reality or historical facts but, rather, on unquestioned presumptions – a “conventional wisdom” if you will – based merely on the similarity between the traditions.

It appears, for one reason or another, scholars have recently taken another look at the origin of Christmas traditions, and their findings have revealed that the conventional wisdom about their origin appears to be mistaken.

Instead of rehearsing the facts and arguments myself, I would suggest checking out this article (see here (“Yes, Christ was Really Born on December 25: Here’s a Defense of the Traditional Date of Christmas” by Dr. Taylor Marshall on his website)) and this article (see here (“Calculating Christmas” by William J. Tighe on Touchstone)).

In addition to the above articles, I highly suggest watching this video:

This additional video is primarily addressed to Christians who object to Christmas trees on biblical grounds:

As it turns out, a great article by Daniel Lattier on this subject was recently published in Intellectual Takeout and can be found here and below:

It’s generally accepted that early Christians adopted December 25th as the day of Christ’s birth to co-opt the pagan celebration of the winter solstice. Some believe this fact undermines Christianity.

But according to Professor William Tighe, this “fact” may actually be a myth.

Based on his extensive research, Tighe argues that the December 25th date “arose entirely from the efforts of early Latin Christians to determine the historical date of Christ’s death.” He also goes so far as to claim that the December 25th pagan feast of the “’Birth of the Unconquered Sun’… was almost certainly an attempt to create a pagan alternative to a date that was already of some significance of Roman Christians.”

Tighe explains…

In the Jewish tradition at the time of Christ, there was a belief in what they called the “integral age”—that the prophets had died on the same days of their conception or birth. Early Christians spent much energy on determining the exact date of Christ’s death. Using historical sources, Christians in the first or second century settled on March 25th as the date of his crucifixion. Soon after, March 25th became the accepted date of Christ’s conception, as well.

Add nine months—the standard term of a pregnancy—to March 25th, and Christians came up with December 25th as the date of Christ’s birth.

It is unknown exactly when Christians began formally celebrating December25th as a feast. What is known, however, is that the date of December 25th“had no religious significance in the Roman pagan festal calendar before Aurelian’s time (Roman emperor from 270-275), nor did the cult of the sun play a prominent role in Rome before him.” According to Tighe, Aurelian intended the new feast “to be a symbol of the hoped-for ‘rebirth,’ or perpetual rejuvenation, of the Roman Empire…. [and] if it co-opted the Christian celebration, so much the better.”

As Tighe points out, the now-popular idea that Christians co-opted the pagan feast originates with Paul Ernst Jablonski (1693-1757), who opposed various supposed “paganizations” of Christianity.

Of course, to Christians, it really doesn’t matter that much whether or not they co-opted December 25th from the pagans, or vice versa. The Christian faith doesn’t stand or fall on that detail. But it’s nevertheless valuable for all of us to give closer scrutiny to shibboleths—such as that of the pagan origins of Christmas—which are continually repeated without being examined.

 

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