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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.

Superior Court Makes Child Abuse Evidentiary Standard Clearer

Child abuse is a terrible scourge on our society and being labeled as a child abuser can be a terrible burden on one’s life if the label is incorrect. In the recent case of In Re Matter of L. Z. Appeal of: L. R., Mother, The Pennsylvania Superior Court made it clear as to what is required for one to be deemed a child abuser in the context of a dependency action.


In December 2011 a child (hereinafter “Child”) was taken to Abington Memorial Hospital for injuries, and staff alerted Child Protective Services (hereinafter “CPS”) and the Department of Human Services (hereinafter “DHS”). The injuries included a deep cut to the base of his penis, a bruise on each cheek, severe diaper rash, a yeast infection, and general dirtiness.


An adjudicatory hearing was subsequently held where testimony and evidence were heard. The evidence revealed that the Child’s mother (hereinafter “Mother”) was residing with her paramour for the two days prior to the incident which led to the Child’s examination in the hospital. Mother provided various explanations for the bruises and rash (of questionable credibility) but had no explanation for the penile cut. Investigation into the matter revealed that CPS indicated the Child’s aunt was the perpetrator of the abuse to the Child.


The hearing also included testimony from a pediatrician certified as an expert witness. She testified that the penile cut was extremely uncommon, non-accidental in nature, very painful, and caused by another person (i.e.: not Child). The doctor believed the cheek bruises to be the result of an adult grabbing the Child’s face very tightly. The doctor also testified that the diaper rash was the result of the Child being left in a diaper wet with urine for extended periods of time. None of the above, per the doctor, appeared to be accidental.


Based on the adjudicatory hearing, DHS filed with Juvenile Court to have the Child declared dependant as a result of child abuse. The Juvenile Court found that the Child was the victim of child abuse, and therefore dependant, and that Mother perpetrated the abuse. Mother appealed and the decision of the appellate court is the subject of this article.


After Mother decided to voluntarily relinquish her rights to the Child, the only remaining issue was whether Mother was the perpetrator of the Child’s abuse. The Court first has to determine whether this issue was moot due to the voluntary relinquishment of rights. The Court determined that being labeled a child abuser has long lasting and wide ranging effects beyond the effect it has within the discrete confines of the litigation; including but not limited to being placed into a statewide registry, being prohibited from working at certain jobs, and possibly having to report it to employers or other parties. As a result, therefore the issue on appeal was not moot. As noted by the Court, it may consider collateral legal ramifications of its orders, which is to say the effects an order may have on things outside of its direct scope and purpose.


The Court indicated that, in order to be determined a child abuser, the evidence for the abuse must be clear and convincing. The Court reviewed the law (specifically 23 Pa.C.S.A. § 6303) and noted that a finding of child abuse requires an (in)action upon a minor child that is non-accidental in nature and causes the child serious physical injury (and/or imminent risk for the same) and/or serious physical neglect. The Court further observed that the law defines serious physical injury as something which causes a child severe pain and/or significantly impairs physical functioning.


In its review of the evidence on appeal, the Court made separate findings for each alleged instance of abuse. The Court found that the penile cut was non-accidental and the cause of severe pain and was, therefore, the result of abuse. By contrast the cheek bruises, though non-accidental, did not cause severe pain. The record did not reflect that the yeast infection resulted in any injury to the Child. As far as the claim that the Child had diaper rash or was dirty or unkempt, the Court found that these conditions did not cause the Child any physical injury or impair his development or functioning. Consequently, based on the above, the Court found that the only instance of child abuse supported by the evidence was the penile cut.


Upon a finding of child abuse, pursuant to 23 Pa.C.S.A. § 6381, a finding that a parent or caretaker committed the child abuse requires only prima facie evidence to support it. The prima facie standard is not substantive law but merely an evidentiary presumption which may be rebutted if the evidentiary record fails to establish that the child was in the parent/caretakers’ care at the time of injury. Indeed, the Court noted that the presumption mentioned above does not apply where the possible perpetrators could be one of several adults. The evidence in this case, as mentioned above, revealed that the Child was not with Mother when he was abused but was with his aunt instead.


The Court conceded that the Mother did not provide the Child with proper care, indeed Mother concedes as much as well, but the Court further noted that simply failing to provide proper care is not the same as perpetrating child abuse. Instead, the Court held that it must be clear that the caretaker suspected of abuse must have been responsible for the supervision and control of the child at the time of the abuse. The Court found that the evidence in the record in this case revealed that the Child was not with Mother at the time he was abused, therefore Mother cannot be found to have committed child abuse and receive the label of child abuser. The Court rejected the argument that Mother should be held responsible for allowing the Child to be cared for by an abuser as there was no evidence in the record demonstrating that she knew the aunt was an abuse risk.


A dissent was entered arguing that the Court should have focused on the entirety of the Child’s circumstances, and all of the various forms of discomfort the Child suffered as described above, which were committed and/or allowed by Mother. The dissent believed the cumulative effect of Mother’s (in)action led to all of the various abuses and discomforts suffered by the Child, and is the reason why the evidentiary presumption was merely, by statute, prima facie. Clearly, the majority opinion did not find this argument persuasive.

Originally published on September 23, 2014 and can be found here.

Superior Court Offers Refresher Course on Appeals Procedures

The recent Pennsylvania Superior Court matter of J.J. DeLuca v. Toll Naval Associates, 2012 Pa.Super. 222, involved a large construction contract, alleged breaches of that contract and allegations of fraud over the life of the relationship of the parties in this case. Although the underlying case is interesting, the focus of this article is what amounted to the primer the court gave in its opinion regarding appellate practice.

After a verdict and an appeal and remand of the same, the trial court again calculated damages that were appealed again by both parties. On appeal, DeLuca raised a whopping 16 issues while Toll raised nine. When faced with potentially 25 issues raised on appeal, the court recalled U.S. Court of Appeals for the Third Circuit Senior Judge Ruggero J. Aldisert’s statement in his opinion prepared in the case of Kenis v. Perini, 452 Pa.Super. 634 (1996), when he said, “When I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” When reviewing DeLuca’s issues raised on appeal, the court further observed that they often overlapped with one another and were inconsistently numbered and lettered.

Some of DeLuca’s arguments regarded the sums of money paid by Toll at one point during the matter. Despite DeLuca’s taking the time to make the arguments, they had virtually no references to places in the record to support their claims. The court noted that Pa.R.A.P. 2119(c) requires references made to pleadings and evidence and such to be specifically cited to in the record. Indeed, the court, citing Commonwealth v. Imes, 603 Pa. 680 (2009), specifically said it would not “scour the record to find the evidence to support an argument.” As a result, the insufficiently cited claims were deemed waived by the court.

The subsequent argument raised by DeLuca presented a conclusory statement without any supporting authority and was therefore deemed waived by the court. DeLuca’s next argument was quickly deemed “demonstrably incorrect” by the court when compared to the clear testimony of the record. DeLuca’s argument after that was also deemed waived because “DeLuca has failed to develop an argument in support of its … claim, and offers no authority at all to support it.” DeLuca also proposed an argument based on the statute of limitations. The court ruled this argument, too, was waived, as “DeLuca [did] not present any citation to the record to support its claim, or to show where Toll’s evidence was deficient.”

Indeed, another of its arguments was dismissed because DeLuca offered “no other substantiation or explanation” aside from a bald assertion offering “no other support of its claim,” not to mention that it “fail[ed] to present or develop an independent argument in support of its claim.” Furthermore, the court noted that DeLuca’s arguments did “nothing to refute the trial court’s findings.” When reviewing DeLuca’s arguments regarding punitive damages, the court indicated that they were “incomplete” and ignored certain issues and/or merely “incorrectly assumed it would prevail on its assertion[s].” The court also believed that DeLuca “misapprehend[ed the court’s] standard of review” and misapplied (or misunderstood) certain constitutional requirements.

As stated above, the Superior Court’s decision is useful as guidance on what to do (or not do) when filing an appeal. First, when filing an appeal, make the issues on appeal concise, specific and clear, as opposed to sprawling, numerous and repetitive. Second, be sure to cite to the record at all times whenever possible, as the court will not do your work for you in this regard. Third, and this seems quite obvious, one’s arguments must be fully developed, based on the facts and evidence available, supported by authority and the record, consistent with the law and clearly explained and articulated to the court.

Originally published in The Legal Intelligencer Blog on April 23, 2013 which you can see here.

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