Kayden's Law: Proposed Senate Bill Addressing Domestic Violence in Custody Matters

A new bill has been introduced on the Senate level. SB 868 focuses on the issues of domestic violence and its potential effect on children in child custody situations. Kayden, whose parents never married, lived with her mother and stepfather in Langhorne. She was visiting her father at his Manayunk home as part of a court-approved custody arrangement in August of last year when he fatally beat her with a 35-pound dumbbell, then hanged himself. Jeffrey Mancuso had not been violent with Kayden but had been abusive to others. Bucks County Judge Jeffrey Trauger was aware of Mancuso’s violent or aggressive behavior toward Kayden’s mother, his own mother, and other adults when he granted Mancuso unsupervised weekend visits with his daughter in May 2018.

Under the Kayden’s Law, a court would have to impose “safety conditions” to protect a child, including supervised custody visits in a “therapeutic setting” in cases in which a parent has a history of abuse. The measures would broaden the definition of abuse to include threatening behavior, such as harassment and stalking. And they would recommend education and training programs about child abuse and domestic violence for judges and others involved in custody matters.

The bill further provides for award of custody, for factors to consider when awarding custody, for consideration of criminal conviction, for guardian ad litem for child, for counsel for child and for award of counsel fees, costs and expenses; in Administrative Office of Pennsylvania Courts, providing for child abuse and domestic violence education and training program for judges and court personnel; and, in depositions and witnesses, further providing for rights and services.

This is a proposed bill at this time and will likely have significant revisions. However, if some version of it is implemented there is the potential for the change in law with Kayden’s Bill.  For information as to the proposed bill, visit the Pennsylvania General Assembly website at: www.legis.state.pa.us

https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=S&billTyp=B&billNbr=0868&pn=1229

Gag Orders in Custody Cases: Is It Your Right to Speak to the Media?

In a child custody case, do the parents have the right to talk to the media? Is that right protected by the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution? These are the big questions that the Pennsylvania Supreme Court will be considering. The Supreme Court has agreed to hear a case of a mother and her attorneys who were subjected to a gag order for talking to the media about her child custody battle, in which she accused the father of sexual abuse of the child.

In this case, the mother’s attorney held a press conference in which he disclosed the identity of the mother and restated the child’s in-court testimony, which included allegations of sexual abuse by the father. Additional sectors of the media picked up on the story. Father then filed a motion for sanctions against the mother and her attorneys. As part of his motion, father requested that all documents relating to the case be removed from public access. While the Court denied the father’s motion for sanctions, the Court did prohibit the mother and her attorneys from speaking publicly about the case in any way that could cause the child to be identified. 

Mother asserted that her free speech rights have been violated by the gag order.  The trial court considered the following when issuing its decision as to the speech of the mother and her attorneys: 

(1) tended to identify child; 

(2) was harmful to child; 

(3) whether child’s right “to be free from undue scrutiny, ridicule, and scorn” outweighed the right of mother and her attorneys to engage in public discourse.

The trial court also noted that the child attends a school “where teachers, parents and students are likely to know each other and that the identification of a parent would naturally identify the child.”

The Superior Court noted that the trial court’s order is not concerned with the content of mother and her attorneys’ speech, but with the target of the speech (the child). The court seeks to protect the child’s identity and privacy. It is the identification of child that triggers the application of the gag order. The Superior Court also noted that the mother’s unsubstantiated allegation of sexual abuse by the father warrants confidentiality of the proceedings and that the child has suffered emotional trauma because of the strife between the parents. 

According to the court, the gag order does not prevent mother and her attorneys from speaking publicly about child abuse and parental alienation generally. The order limits mother and her attorneys from communicating anything that would tend to identify and harm child. Additionally, the order does not bar the media from any of the proceedings in the case, nor does it prohibit the media from reporting on the matter. 

What does this mean for you? 

Be careful of your use of media of any type when involved in a child custody matter. If you have questions regarding this very sensitive issue and the use of media, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Does the Court Have to Reconsider the Custody Factors with Each New Hearing?

In a recent case, the Superior Court of Pennsylvania Ordered that the Court of Common Pleas of Cumberland County erred in its child custody order. The trial court incorporated by reference its consideration of some §5328(a) factors from a prior order. The Superior Court indicated that the incorporation by reference of an outdated analysis of factors was not appropriate. 

Here is a brief background of this very extensive case. A final custody order from 2016 awarded shared legal custody of child, primary physical custody to mother and partial physical custody to father on certain days and weekends. Mother filed for special relief requesting the court order the parties to participate in custody evaluation. Trial court deferred a decision on mother’s motion. In the meantime, father requested shared primary custody of child. In December 2017, trial court followed the GAL's recommendation and entered an interim order awarding father partial physical custody on an alternating two-week schedule. 

At a 2018 custody hearing, the trial court gave father partial physical custody every other weekend and granted mother's requests for preschool attendance and to designate a child counselor/play therapist, among other decisions. Both mother and father appealed that order. Mother argued that the trial court failed to consider all of the §5328(a) factors. Mother also argued that the trial court incorporated by reference a portion of a previous outdated analysis from an earlier order. The Superior Court agreed with mother that the trial court must analyze all of the §5328(a) factors any time that the trial court makes a change in a custody award. The Superior Court also agreed that incorporation by reference of a previous and outdated analysis of the factors was not sufficient and vacated the order.

As a result, the Superior Court vacated the trial court’s order and sent the matter back to the trial court for a complete analysis of the §5328(a) factors, followed by the entry of a new custody order. 

What does this mean for you? 

If the court has failed to evaluate all of the §5328(a) factors in your case or you have a modification hearing pending call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

Parent Granted Relocation- Review of a Recent Relocation Case.

Mom Can Move

 In a recent order issued in the Court of Common Pleas of Monroe County in the case of Song v. Valderrama, Judge Stephen Higgins discussed the standards and factors that must be applied in a case where mother was looking to relocate with her 5-year-old child from Pennsylvania to Florida. In this case, the relocation was granted.   Both the relocation and the custody factors along with a review of the findings of each of the factors is provided below.

In a relocation case, the party wishing to relocate has the burden of proving that the relocation is in the best interest of the child.  In addition, “each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” 

23 Pa.C.S.A. 5337(h) provides the 10 relocation factors that a court must consider in a relocation case:

1).The nature, quality, extent of involvement and duration of he child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.   The court weighed this factor slightly in favor of Mother.  The child has no siblings.  Mother has been the primary caregiver for the child since he was born. She proposed a schedule where Father could enjoy holidays and summer vacations, as well as unlimited time with him in Florida.  She also testified that she co-parents with Father very well.  Father raised concerns over Mother’s abuse of cocaine and that she would have less support in Florida.  According to the court, Father would not be in a position to enjoy primary physical custody of the child. 

2).The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.  This factor was found to be neutral. 

3). The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties. This factor was weighted in favor of Father.  The relocation would be difficult.  Mother testified that Father saw the child only once in a six week period but hat Father has alternating weekends with the child.  The relocation would cause a financial hardship for Father and he would not be able to maintain the current custody agreement.  

4).The child’s preference, taking into consideration the age and maturity of the child.  The court did not interview the child and thus found that this factor did not favor either party. 

5).Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.This factor did not favor either party because the court found that there was no evidence suggesting that either party has attempted to thwart the relationship of the child with either party. 

6).Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but no limited to, financial or emotional benefit for educational opportunity.  The factor was found in favor of mother in that it would generally enhance Mother’s financial opportunities and quality of life.  She testified to a financial benefit by obtaining a property management position in Orlando.  Her brother and his wife lived there and could assist in child care.  She also testified to other ties (a cousin and friend) who lived nearby including Father’s grandmother and step-father.  

7). Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.  This factor was found to be in favor of Mother. She presented a letter from the doctor that indicates that he has to stay indoors in the winter due to acute asthma attacks. In Florida, he would be allowed to play outdoors. Mother found a school that would be a good fit for him. Although she did not offer any additional information, the court found that the child’s general quality fo life would improve.

8).  The reasons and motivation of each party for seeking or opposing the relocation.The court believed that Mother’s reasons for seeking to relocate where genuine and that Father’s reasons for opposing the relocation were sincere.  

9).  The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party. Under this factor, the court considered Father’s concerns over Mother’s past abuse of cocaine.  She said she is no longer using though she has struggled with addiction. The court notes that Father did not seek to modify the custody for the child’s well-being and no was there evidence of present abuse by Mother or any risk of harm to the child. This factor was found in favor of Father. 

10).  Any other factor affecting the best interest of the child.  The court believes that both parents are good parents.  The decision notes that Mother has been financially providing for the child and that is Father has not been providing child support and is in contempt of his financial obligations. Mother also provided that the relocation would help with the child’s asthma and health issues.  The support system and family members who reside near the proposed relocation would benefit mom. After considering these factors, the court found that Mother met her burden and then turned to the custody factors. 

In addition to the relocation factors, the court also considered the 16 Custody Factors:

1).Which parent is more likely to encourage and permit frequent and continuing contact for the child with the other parent?In this case, the Court favored the Mother. The Mother presented evidence that Father only saw the child one time in six months. The Mother indicated that the child needed his Father. Court felt that the Mother would be more likely to encourage contact.  

2).  Was there present or past abuse or a continued risk of harm to the child? In this case, there was no evidence of abuse making this factor irrelevant. 

3).  Parental duties performed by each party on behalf of the child. In this case, the Mother had provided the majority of the child’s care since birth.

4).  Need for stability and continuity of child’s education, family life and community life. Again, this factor was favored to the Mother. The Father in this case had not contributed to the child’s support. 

5).  Availability of extended family. This factor was awarded to the Father in this case. Most of the extended family for both Mother and Father were in Pennsylvania. However, Mother did have family in Florida. 

6).  Child’s sibling relationships.In this case, there were no siblings, making this factor irrelevant. 

7).  Well-reasoned preference of child, based upon child’s maturity and judgment. In this case, the child was 5 years old and not interviewed by the Court, making this factor irrelevant. 

8).  Attempts of parents to turn child against each other, except in cases of domestic violence where reasonable safety measures are necessary.The Court was neutral in this case as it did not appear that either parent had attempted to turn the child on the other parent. 

9).  Which parent is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for child’s emotional needs?The Court again favored the Mother. The Father’s time with child was inconsistent; including a six month period of time that he only saw child one time. 

10).Which parent is more likely to attend to daily physical, emotional, developmental, educational and special needs?The Court believed that both parents would attend to the needs of the child in this case. Therefore the Court was neutral on this factor. 

11).  Proximity of residences of parties.The Court favored the Father in this factor as all of the extended family lived within Monroe County. The Mother was asking to move with the child to Florida. 

12).Availability to care for child or make child care arrangements. The Court was neutral on this factor as both parties have family close in Pennsylvania and Mother stated that she has family in Florida close to where she wanted to move to. 

13).Level of conflict and willingness of parties to cooperate with one another.The Court was neutral on this factor as it appeared that the parents had good communications.

14).History of drug or alcohol abuse.The Court was neutral on this factor. The Father suggested that the Mother had a previous drug habit, but she claimed that was no longer an issue. The Court noted that Father did not present any evidence to the contrary. Furthermore, the Father did not seek sole custody based on the Mother's alleged drug issues.

15).Mental and physical condition of part or other members of household.The Court was neutral on this factor.

16).Other relevant factors. The Mother was the primary care giver. Both parents co-parent very well. Both parents love and nurture child. 

The most important factor to consider is what is in the best interest of the child. In this situation, the Court held that the parents would continue with shared legal custody and shared physical custody, with the Mother being the primary custodial parent. The Father would have physical custody that worked with the child’s school calendar. The Mother had been the child’s primary parent since his birth. She was the parent who took him to his healthcare appointments. The Father had not been paying any child support, so the Mother had been solely providing for the child’s financial support. 

The Court further held that since the Mother wanted to make the move that she had to pay for travel arrangements for time for the Father to see the child for Christmas Break 2019 and Spring Break 2020. Beginning in summer vacation 2020, the parents would share transportation expenses equally. Furthermore, the Court ordered that the parents would have telephone access to the child that was reasonable. 

What does this mean for you?  

If you find yourself in the situation where a parent is considering a move, you will need assistance in presenting evidence to satisfy the factors as outlined by the Court. Call Kinchloe Law at 215-564-1580 so that we can assist you in the assessment of your current situation and to discuss your options.

Equal Time Does NOT Equal No Child Support

 Do you think that because you have more time with your children than their other parent that you will not have to pay child support? Not according to the July 17, 2019, Order issued by Judge Dominick Motto in the Courts of Common Pleas of Lawrence County, Pennsylvania. According to the opinion issued by Judge Motto in Pierce v. Mayberry, a party with primary custody could still be ordered to pay child support, under certain circumstances. 

 Let’s dive in to this Order and explore the facts. 

Here are the facts: 

1.    Mr. Mayberry has overnight custody of the two minor children 54% of the time. 

2.    Ms. Pierce has overnight custody of the two minor children 46% of the time. 

3.    Ms. Pierce is a waitress earning less than minimum wage (as a side note, she was assessed minimum wage by the Domestic Relations Section, which was appropriate).

4.    Mr. Mayberry’s percentage of the combined monthly net income was 79.58%. 

5.    Ms. Pierce’s percentage of the combined monthly net income was 20.42%.

After credits for insurance coverage and overnight custody time, Mr. Mayberry was stillordered to pay Ms. Pierce $761.50 per month. Judge Motto’s Order is supported by a previous Order in the case of Colonna v. Colonna.  The Colonna case made its way up to the Supreme Court of Pennsylvania. The Supreme Court indicated that when a parent that does not have primary custody of the children earns significantly less income than the primary custodial parent, that non-primary custodial parent may not be able to provide the children with a similar environment as the custodial parent.  This significant change in environment can have an adverse effect on the relationship of the non-custodial parent with the children. 

In other words, a child support obligation is not merely determined based upon custody and time with the children.  The support obligation factors in the respective incomes of the parents. If there is a large disparity between the parties' incomes, there is case law to support an argument for the custodial parent to pay support to the non-custodial parent.  

What does this all mean for you? 

If you have similar custodial parenting time, but a large difference in income, you may need to review your current order or agreement. Call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.

The 17 Alimony Factors

When deciding alimony, the court will consider whether it is necessary, how it is to be paid, along with the amount and duration and manner of alimony payments, the courts will consider the following 17 factors:

1. The relative earnings and earning capacities of the parties;

2. The ages and the physical, mental and emotional conditions of the parties;

3. The sources of income of both parties including, but not limited to, medical, retirement, insurance or other benefits;

4. The expectancies and inheritances of the parties;

5. The duration of the marriage;

6. The contribution by one party to the education, training or increased earning power of the other party.;

7. The extent to which the earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child;

8. The standard of living of the parties established during the marriage;

9. The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

10. The relative assets and liabilities of the parties;

11. The property brought to the marriage by either party;

12. The contribution of a spouse as a homemaker;

13. The relative needs of the parties;

14. The marital misconduct of either of the parties during the marriage.  The marital misconduct after the date of final separation shall not be considered except in cases of abuse;

15. The Federal, State, and local tax ramifications of the alimony award;

16. Whether the party seeking alimony lacks sufficient property, including, but not limited to, property distributed under Chapter 35 (relating to property rights), to provide for the party’s reasonable needs; and

17. Whether the party seeking alimony is incapable of self-support through appropriate employment.  

Alimony may be for either a definite or indefinite period of time. The court shall set forth the reasons for any award or denial of alimony in the Order.  The awards may be modified, suspended, terminated, or reinstituted. Remarriage of the party receiving alimony shall terminate the award of alimony. Cohabitation may also cause the alimony award to be terminated. If you have questions about alimony and how these factors may work in your case, you may contact us at 215-564-1580.

Pet Custody? Who gets the dog in the divorce?

Who gets the dog in the divorce?

Currently, pets are treated like other inanimate objects or property in Pennsylvania divorces. A bill introduced on May 8, 2019 by Rep. Anita Astorin Kulik seeks to establish factors to determine who should get a companion animal in a divorce:

The bill describes companion animals as a “domesticated living being referred to as a pet” or an animal which “has been bought, bred, raised or otherwise acquired in accordance with applicable law for the primary purpose of providing the owner with assistance in relation to a disability, security or companionship, rather than for business or agricultural purposes.”

When determining who should be awarded the family pet, H.R. Bill 1432 provides six factors the court should consider:

(1) Whether the companion animal was acquired prior to or during the marriage.

(2) The basically daily needs of the companion animal.

(3) The party who generally facilitates veterinary care for the companion animal.

(4) The party who generally provides the companion animal with social interaction.

(5) The party who generally ensures the compliance with State and local regulations regarding

the companion animal.

(6) The party who provides the greater ability to financially support the companion animal.

Finally, the bill gives some guidance in agreements in that they may provide for the periods of time during which each party will possess the companion animal and the financial responsibility of each party regarding the care of the companion animal. This essentially allows for the court have pet custody agreements entered into by agreement of the parties.

Here is a link to the full bill.

How Remarriage or Cohabitation May Affect a Custody Case

New relationships can present a host of problems in custody cases.  They can also be the catalyst for modifications or new filings.  However, a loving, stable relationship between a parent, their new spouse or paramour, and the child can also be in the best interest of the child. 

When one parent remarries or is cohabitating with a new partner, the court may look at several aspects when determining the best interest of the children.  Among these may be:

1. The marrying parent’s relationship history.  Have they had a series of serious relationships/marriages that have ended quickly or badly?

2. What about the character of the spouse or paramour and their ability or desire to parent the child?

3. The bond between the parent’s new partner and the child.

4. The number of children coming into the relationship (step-children, half-siblings, etc.).

The court is ultimately tasked with determining what is in the best of interest of the child.  This means that a court should not automatically side in favor of a two-person household over a single-person household.   Testimony and evidence from the new partner to show a desire and ability to parent the child (or lack thereof) is important to any custody case.  Courts have even remanded cases where there was a lack of testimony from the spouse stating their willingness to parent the child as their own. See J.F.G. v. K.A.G., 278 (Pa. Super. 25, 419, A. 2d 13337 1980). 

Often the new partner’s presence may have an affect on the sixteen factors, such as the availability of extended family, siblings, ability to provide adequate childcare, and others.  To see a full list of the factors, click here.

Can the Court Deviate from the Child Support Guidelines?

The court may deviate from the support guidelines when determining a child support obligation, but is required to state why in writing or on the record, the amount and the reasons for and findings of fact justifying the amount of deviation. Deviation doesn’t always mean lower.

The court should consider the following when deciding whether to deviate from the guideline amounts:

1. unusual needs and unusual fixed obligations;

2. other support obligations of the parties;

3. other income in the household;

4. ages of the children;

5. the relative assets and liabilities of the parties;

6. medical expenses not covered by insurance;

7. standard of living of the parties and their children;

8. other relative and appropriate factors, including the best interests of the child.

See PA Rule 1910.16-5.

What Can I Do If My Child's Mother/Father Talks About Me To My Child?

Dealing with Disparagement

Talking poorly about your child's other parent in front of them or to them can be harmful to them and detrimental to their relationship with that other parent.  It can also lead to parental alienation and the court does not take it lightly. If you are on the other side it can frustrating, depressing, and infuriating.  

What You Can Do:

1. Ask for a non-disparagement clause to be included in your custody order.  If you are litigating or plan to modify your custody order, you can ask for a non-disparagement cause to be included in your order.  While it should go without saying that the other parent should not talk poorly about the other parent to their child, you may need to have this spelled out explicitly in your order if this has been an issue in your case. It the other parent continues to badmouth you to your child, it will make it that much easier to prove contempt of this clause and/or assist with a modification of custody in the future.
2. Get Proof.
   1. Written Evidence.  Text messages and emails that can be authenticated (proven to be from the person at a time and date and with context), can be very helpful. However, you have to think about what is in the message.  Just because your child's mother says terrible things to you, does not necessarily means she says them to your son or in front of him.
   2. Video and Audio Evidence.  It is very important to know the state and federal rules about recording third parties and obtaining consent/notice.  If the person submits to it voluntarily, like leaving a voicemail which they know is being recorded or some forms of social media messages, it may indicate that they have implied consent. Know the rules, but these can be some of the strongest forms of evidence.
   3. Testimony from your child. If your child is old enough, a judge or master may interview your child to determine whether disparagement is occurring.  Testimony from children is often done outside of the presence of both parents, though in some situations counsel may be present.
   4. Testimony from a third party.  A third party may be able to testify about your child's parent disparaging you to them in front of your child.
3. File for Contempt.  Where there is language in a custody order that prevents parents from disparaging the other parent, the parent may be in contempt if they continue to do so. The parent being disparaged can file a petition of contempt against the other parent and ask for attorneys' fees and sanctions
4. Requesting Modification.  If the disparagement is so bad that it has been affecting the relationship of the child with the parent being disparaged, a modification of the custody order may be warranted before it leads to complete parental alienation. Of course, a modification can be done at any time for any number of reasons. You can speak to a lawyer about requesting a modification of custody or do it yourself.  
5. Attend Co-Parenting Classes/Therapy.  When parties split or where a custody battle has made things ugly between the parties, co-parenting counseling can be very helpful.  An objective third party can help mediate issues, assist the parties with how to speak with each other, and get the family back on track.  Co-parenting counseling can also be made part of a custody order, with a judge also ordering how long the parties are to attend and who is to pay the cost.  

Speak with an attorney licensed in your state about the facts specific to your case.  This blog is for information purposes only and is not legal advice.  There is also no intent to create any attorney-client relationship by way of this or any other post on this website. 

What Must Go Into a Notice to Relocate?

A parent who wants to relocate shall notify each person who has custody rights to the child by certified mail, return receipt requested.  No relocation is to occur without the consent of all parties or unless a court approves it.  Section 5337(c) requires that the notice contain the following: 

1. The address of the intended new residence.
2.  The mailing address, if not the same as the address of the intended new residence.
3. Names and ages of the individuals in the new residence, including individuals who intend to live in the new residence.
4.  The home telephone number of the intended new residence, if available.
5. The name of the new school district and school.
6. The date of the proposed relocation.
7. The reasons for the proposed relocation.
8. A proposal for a revised custody schedule.
9. Any other information which the party proposing the relocation deems appropriate.
10. A counter-affidavit as provided under subsection (d)(1) which can be used to object to the proposed relocation and the modification of a custody order.
11.  A warning to the non-relocating party that if the non-relocating party does not file with the court an objection to the proposed relocation within 30 days after receipt of the notice, that party shall be foreclosed from objecting to the relocation.

If a party does not know all of the information required above at the time of sending the notice, they must promptly inform every person who received noticed.  See PA Section 5337(c)(4).  

Notice is to be given no later than the 60th day before the date of the proposed move or the 10th day after the date that the party proposing to move knows of the relocation, if that person could not have known about the the relocation in time to comply and it is not reasonable to delay the relocation.  The other party will have 30 days to object to the relocation.  

What happens to a custody case if the other party has been charged with a crime?

A trial court must consider each party’s (and their household’s) criminal history.  Criminal convictions are often the focus of this review. However, 23 PA C.S. Section 5330 provides that if a party has pending criminal charges, the court must consider whether that party poses a risk of physical, emotional, or psychological harm to the child.  There are certain crimes, often referred to as “enumerated offenses” because they are specifically enumerated in the statute, that the court will review to determine whether a party poses such a risk.  These offenses, listed fully in Section 5239, include homicide, sexual assault, endangering the welfare of a child, driving under the influence, and more. See the full list of enumerated offenses here.

If a party has been charged with an enumerated offense under Section 5329, the other party may seek a temporary custody order or a modification of an existing order.  This hearing is to be held “expeditiously.” The court must consider whether the charged party poses a risk of physical, emotional, or psychological harm to the child as stated above. The court must consider any proof produced by the parties about the existence of criminal charges or abuse.

Support of Adult Children

Is a parent responsible for the support of their adult children?  Generally, parents are responsible for the support of a child until the child reaches the age of majority (18) or they graduate from high school, whichever event occurs later.  The right to support may actually exist beyond majority where the child is physical or mentally challenged or unable to support themselves. 23 PA.C.S. Section 4321(3). 

The court will look to determine whether the child is able (physically and mentally) to engage in profitable employment and whether that employment is available to that child at a supporting wage.  The burden is on the child to prove that these impairments exist and that they are unable to support themselves.  Often, it is the custodial parent that undertakes this burden.  The burden may be met by providing medical evidence supporting the diagnosis and limitations and/or with reports from vocational rehabilitation services to describe the impact of the child’s mental or physical impairments on his ability to support themselves. 

A New Bill Seeks to Change the Way Spousal Support and Alimony Pendente lite is Determined.

House Bill No. 1250 stands to change the way that spousal support and alimony pendente lite (APL) is determined in Pennsylvania.  Instead of using the Pennsylvania Support Guidelines to determine the amount of support subject to certain deviations, House Bill 1250 will focus on the "basic needs" of the petitioning spouse.  Alimony pendente lite is an order for temporary support granted to a spouse during the pendency of the divorce.  Spousal support is defined as care, maintenance and financial assistance. 

The Bill reads, in part, that the court may allow a spouse "reasonable alimony pendente lite or spousal support upon determining the that the income and resources of the petitioning spouse are insufficient to provide for that spouse's basic needs, including the costs of prosecuting or defending the action."  It also provides for an award of reasonable counsel fees and expenses and the authority to award exclusive use of the family home or any other dwelling which is available for use as a residence of either party.  It also may direct adequate health and hospitalization insurance coverage be maintained for the dependent spouse pendente lite.  The Bill also provides that a determination of either types of support may not be based solely upon any rule of court setting forth presumptive guidelines for the calculation of support or upon the party's standard of living during the marriage.

The purpose of the change in APL and spousal support, according to the memorandum by Representative Sheryl M. Dozier,  is that the current "guidelines don't even take into account what should be threshold questions: Can the parties independently meet their own needs? Will one party otherwise be disadvantaged in the divorce process if not granted temporary financial support? Over-reliance on a formal that does not take into account the purpose of APL into account, the fact that the payments end only wen the divorce is finalized and the fact that APL awards are unappealable all work together to encourage inefficiency and unfair dealing."  The memo also goes on to state that the use of the guidelines have turned into "a tool for financial coercion." 

The current support guidelines which may be found at Pa. R.C.P. 1910 16-4 were promulgated by the Supreme Court of Pennsylvania.  They allow for a rebuttable presumption of support subject to certain deviations found at Pa. R.C.P. 1910.16-5(b)(9) such as: unusual needs and unusual fixed obligations, other support obligations, relative assets and liabilities of the parties, standard of living of the parties and their children, and the duration of the marriage among other factors. Read all of the factors here. 

The guidelines provide some uniformity and predicability as to how spousal support and alimony pendente lite will be determined.  A focus on the "basic needs" of the spouse will likely require a more detailed hearing process to determine the actual "basic needs" of the petitioning spouse as well as the income of the parties, which may further delay and harm both the dependent and paying spouse. 

House Bill No. 1250 was referred to the judiciary on April 19, 2017.  

The Wait Time for a Divorce Just Got Shorter.

How long do you have to wait for a divorce?  This question varies based upon the type of divorce that you are seeking.  However, the wait time for an irretrievable breakdown, no-fault divorce, also known as a Section 3301 D divorce, just got shorter.  In October, Gov. Tom Wolfe signed a bill that reduced the amount of time the parties have to be separated to just one year, instead of two years.  

Where the parties have lived separate and apart for at least ONE year and one spouse files a complaint and affidavit stating that the marriage is irretrievably broken, the court may grant a divorce.  This is for all separations that begin after December 3, 2016.  All separations beginning before that date will continue to follow the two year rule.

Aside from reducing the amount of time a party had to wait to divorce from the uncooperative spouse, this can also affect spousal and alimony pende lite payments.  Before, the non-paying spouse could almost force the paying spouse to wait two years for a divorce and continue to receive payments.  This time is cut down to half.  Of course child support payments could persist.  

Separate and apart does not necessarily mean living separately, though that is an easy way of showing the parties have separated.  There are defenses to spousal support and alimony pende lite payments.  There are other types of divorces, such as fault or mutual consent.  If you would like more information or wish to discuss your case, please contact us for a consultation. 

Will losing or quitting my job affect the amount of my child support payments?

What happens to court-ordered child support obligations if you quit or lose your job?

Changes in income can happen.  The State understands that there may be fluctuations in income and have crafted rules to address those fluctuations.  Generally, the court looks at whether the changes were voluntary or involuntary.  Nothing happens automatically and you should look to the rules as to how to request a change in your support obligations.   

In cases of voluntary reductions of income, there will generally be no adjustment to the support obligation.  Examples of voluntary reductions of income include:

1. Assuming a lower paying job
2. Quits a job
3. Leaves employment
4. Changes occupation or employment status to pursue an education
5. Fired for cause.

However, there are times when fluctuations in income are involuntary.  Adjustments in the support obligation can be made for involuntary reductions that result in substantial continuing involuntary decreases in income for some of these reasons:

1. Illness;
2. Lay-off;
3. Termination; 
4. Job elimination; 
5. Something else beyond the party’s control.

However, if the court finds that a person has voluntarily taken some action to cause the deduction in income, the court will not make an adjustment.  If the trier of fact determines that a party has willfully failed to obtain or maintainappropriate employment, the trier of fact may impute an income equal to the person’s earning capacity.  The court will look at the party’s age, education, training, health, work experience, earnings history and child care responsibilities (among others) to determine earning capacity.  

It’s important to know that the adjustment may not be made automatically.  Your order tells you when you must notify the courts of changes in your income.  Asking for a review, increase, or decrease of your support payments is a way to alert the court as to changes in either party’s income.  Speak to an attorney about the specific facts of your case and be sure to follow the rules in your county.

If you have questions about how a loss or decrease in income affects your child support payments, contact us today to schedule a free telephone consultation.

What is considered income for child support purposes?

What is considered income for child support purposes?

The first step in determining a support obligation is determining the parties' net income.  The court will take monthly gross income and then deduct certain expenses to arrive at each parties’ monthly net income.  The court will also consider other factors discussed below before determining the percentage of each parties’ support obligation.

What is considered income?  The court uses a six-month average of all of the party’s income.  Income includes, but is not limited to:

1. wages, salaries, bonuses, fees and commissions;
2. net income from business or dealings in property;
3. interest, rents, royalties, and dividends;
4. pensions and all forms of retirement;
5. income from an interest in an estate or trust;
6. Social Security disability benefits, Social Security retirement benefits, temporary and permanent disability benefits, workers’ compensation and unemployment compensation;
7. alimony (in some circumstances); and
8. other entitlements to money or lump sum awards, without regard to source, including lottery winnings, income tax refunds, insurance compensation or settlements; awards and verdicts; and any form of payment due to and collectible by an individual regardless of source.

There are certain exceptions or qualifications to be taken into consideration with the above list.  Here are a few:

1. Seasonal Employment. For example, if one person’s job is seasonal, the court will use the year average and not the six month average.  In this situation, it is important to show a year’s worth of earnings to make sure that the gross income is not artificially low or high.  
2. Social Security Disability benefits.  There are two types of Social Security disability benefits: Supplemental Security Income (SSI) andSocial Security Disability Insurance benefits (SSDI).  Supplemental Security Income (and public assistance benefits, for that matter) are not considered income.    
3. Imputed Income.  If an individual voluntary quits their job or refuses to work, the decision maker may compute an earning capacity to that individual.

What is deducted from income?

1. federal, state, and local income taxes;
2. unemployment compensation taxes and local services taxes;
3. Social Security, Medicare and Self Employment taxes (FICA) and non-voluntary retirement payments;
4. mandatory union dues; and
5. alimony paid to the other party.

Once the court has arrived at the parties’ net monthly income as determined in 231 PA 1910.16-2, the court may also allocate other expenses such as childcare, medical insurance premiums, and other unreimbursed medical expenses between the parties.  The court will consider other factors including the amount of custody shared between the parties and each party’s other support obligations to dependent children.  The support guidelines will then be applied to determine each parties’ obligation.  

As noted above, there are several exceptions and qualifications to many of the income resources and deduction rules. Contact us today for a free consultation to discuss the unique facts of your case.  

Resources: PA 1910.16-2      

When do child support payments end?

When do child support payments end?  Do I have to do anything once my child turns 18 to stop the payments?

Technically support orders do not terminate automatically and a person paying child support was required to file a petition to terminate a child support order once the child is emancipated.  Subdivision (e) of Rule 1910.19 was implemented to prevent overpayments and to give parties notice.  Now, within the six months before the child turns 18, the court will issue an emancipation inquiry and notice to the obligee and a copy to the obligor asking certain questions to see whether the order shall remain in effect after the child turns 18 or graduates from high school (whichever is later). If there is no response after 30 days, the domestic relations section can administratively modify or terminate an order.

If you are receiving child support, you should complete and return the inquiry especially if there is a reason that the child should continue to receive support beyond age 18 or graduating high school.  If you do not return the notice, the domestic relations section may modify or terminate the order without further proceedings.  If there are other children on the court order, there may be a conference.

Three reasons why child support may continue even after the child reaches 18:

1. The child has special needs.
2. There is an agreement between the parties that requires support beyond age 18 or after the child has graduated from high school.
3. There are arrears.

Arrears.  If the person paying child support owes arrears, the arrears continue to accrue through the date of the termination.  The domestic relations section may continue to have child support deducted in the amount of the original order to cover the arrears.  In this situation, the arrears will be paid off faster.

If you object to paying support for your child beyond age 18 or their graduation from high school, you may request a hearing.

If you have questions about child support, contact us for a free telephone consultation.  You may also consult Pennsylvania Rule 1910.19.

Which parent is responsible for the cost of transportation when they share custody?

A custody agreement will create the need for transportation.  At times, the transportation may become significant in terms of time and money.  While there are no set rules for determining who bears the burden of the cost of transportation, a court may find that the parent moving away and creating the need for travel costs may be responsible for costs.  The courts will consider the financial ability of each party to incur the costs. Please also be aware of that Pennsylvania courts have found that where one parent is responsible for transportation costs in order to exercise their partial custody, they may be entitled to a reduction in child support to cover the cost of transportation.

In addition to costs, parents also want to know whose responsibility it is to transport between the parents.  This designation is not always considered, but can cause unnecessary headaches if not defined clearly.  Even if the parties are amicable, it is a good idea to establish who transports where and when, especially if there is considerable distance between the parents.

Will the courts keep siblings together?

In determining which parent will get custody, will the courts give greater weight to keeping siblings together?  What about half-siblings?

The main focus of the court is to determine the best interest of the child.  Whether the best of interest of the child is to be with their siblings primarily is to be determined.  In all cases, the courts use the 16 factors to determine what is in the best interest of the child or children.  The courts understand that the relationship a child shares with their siblings is an important one that can play a large role in their development.  As such, one of the factors the courts consider is which party is likely to keep siblings together.  The courts will also consider the requests of the child, depending on their age and reasoning.  This is includes if the child is requesting to live apart from their siblings.  

In Philadelphia, the courts have looked at a compelling reason standard.  This means that the courts will usually look toward keeping the child with their siblings unless there is a compelling reason not to do so.  However, if there is a substantial custody arrangement that can still satisfy the goal of significant relationship between the children, the courts will allow the separation of the siblings. These principals can also be applied to half siblings.