Custody and Child Support Beyond the Age of 18

How long your responsibilities (and rights) to the custody and financial support of your children will depend on the statute that you are looking at. The rules are different for the child custody, child support, and dependency (aka child services) statutes.

A recent Superior Court appeal decision highlights the importance of a child’s age during a custody matter.  In M.B.S. v. W.E., 2020 PA Super 118, mom filed an appeal of a trial court opinion that gave sole physical custody of the couple’s then 16-year-old child with mental impairments to father.  While the appellate court ultimately found that the trial court had erred in granting father’s reconsideration without a hearing or finding on the custody factors, it noted that due to child turning 18 in the same month it was making its decision would render the issue moot. It is also worth nothing that the child would be in the 10th grade and still in high school.  There could be no relief at the lower court if the case were to be remanded back to the trial court because the child would be 18 and the court would not have subject matter jurisdiction of the case.  

This opinion allows us to discuss what is a child or an unemancipated individual and how this is different under the custody, support, and juvenile statutes.  

The PA child custody court defines a child as an unemancipated child younger than 18.  This is contrast to the PA child support statute when it considers liability for support.  PA C.S. Section 4321(2) provides that parents are liable for the support of their children who are uemancipated and 18 years of age or younger.  Section (3) also provides that parents may be liable for the support of their children who are 18 years of age or older.  

Generally, the courts have held that a duty of support continues until a child reaches the age of 18 or graduates from high school, whichever occurs later.  There are exceptions this rule.  While the statutes do not provide a definition of emancipation, caselaw does indicate that circumstances to be considered include “the child’s age, marital status, ability to support herself or himself, and the desire to live independently of his or her parents.”’ Nicholason v. Follwiler, 735 A.2d 1275 (Pa. Super. 1999).  Emancipation is a question of fact.  Therefore, a parent could be responsible for support of their adult children.  While the court may order ongoing support for a child who has physical or mental impairments as it did Geiger v. Rouse, 715 A.2d 454 (Pa. Super. 1998), the court will not order a finding of custody.  The parents must seek other remedies when it comes to “custody” (such as guardianship).  

However, contrast this with a child who has been adjudicated dependent by State (in the control of child protective services). In these situations, a child can also be an individual who is under the age of 21 who committed an act of delinquency before reaching the age of 18, is under the age of 21 and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is:

(i) completing secondary education or an equivalent credential; (ii) enrolled in an institution which provides post secondary or vocational education; (iii) participating in a program actively designed to promote or remove barriers to employment; employed for at least 80 hours per month; or incapable of doing any of the above; or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child.  

Finally, with regard to post-secondary education, courts have recognized the obligation of a parent to continue to the college education of a child as indicated under a marital settlement agreement.  Although 23 Pa C.S. Section 4327 provided that a parent whether married, divorced, or unmarried may be responsible for the education of the child. The PA Supreme Court found the statute to be unconstitutional in Curtis v. Kline 542 Pa. 249, 666 A. 2d (1995), The Supreme Court held that Section 4327 violates the equal protection clause  of the Fourteenth Amendment and is thus unconstitutional. PA Legislature has not yet repealed the section.  

It is important to note that each statute has its own definitions which often are further defined or clarified by case law.  An understanding of those definitions, clarifications, and rule applications are essential to planning your strategy and getting an appropriate result.  

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

CAN ALIMONY PAYMENTS BE TERMINATED UNDER A MARITAL SETTLEMENT AGREEMENT?

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The Case of Rosiecki v. RosieckI

In this Superior Court opinion, Rosiecki v. Rosiecki, PA Super 92, Husband tried to terminate his $900 monthly alimony payments to Wife. The previous court found that it did not have the authority to modify the terms of the Husband’s alimony obligation because it was an agreement made by the parties and not court-ordered.  Husband also argued that the court should have held an evidentiary hearing before denying his petition to terminate his alimony payments.

The parties entered into a marital settlement agreement while they were before the Master on December 7, 2009.  The marital agreement provided that Husband is to pay Wife $900 in alimony until such time that all of the four properties in the estate are sold.  The agreement specifically provided the alimony payment would be reduced by specific percentages based upon the sale of the properties with each property having its own specific percentage. Additionally, upon the sale of the each property, Wife would receive 35% of Husband’s net interest in that property. The agreement was incorporated into but not merged into the final divorce decree that entered on January 21, 2010.  

On January 7, 2019, Husband filed an emergency petition for Special Relief to Terminate Alimony and a Request for Hearing. The properties had not yet been sold.  He argued that he could not afford to make alimony payments to Wife because he was out of work and experiencing health problems.  He also argued that he did not understand the settlement as it relates to the payment and/or termination of alimony.  He also believed that the terms in the agreement were incorrect and in error.  He also argued that the agreement did not take into account all of the resources and income of Wife or Husband’s necessary expenses and loss of income. 

WIFE MAKES MOTION TO DISMISS HUSBAND’S PETITION

At the hearing on April 10, 2019, Wife made an oral motion to dismiss the petition.  The trial court directed Wife to file a written motion and ordered Husband to file a response.  In her motion, Wife argued that the trial court did not have statutory authority to modify the terms of the alimony obligation because it arose from the parties’ agreement and not from a court order.  In his response, Husband incorporated the same arguments that he raised in the original petition.  He also requested a hearing and for the taking of testimony and the creation of a record.

The trial court found that the “the terms of the agreement… are clear and unambiguous and provide no language for modification or extension or termination.”  It also provided that the “alimony awarded is a contractual agreement entered into by both parties, who swore under oath understanding of the agreement. Additionally, there is no evidence of fraud, mistake, or duress.  Therefore, this court cannot modify the terms of the agreement.” 

Husband filed a notice of appeal on May 31, 2019 and raised 13 issues. The court reordered as follows:

1. Did the trial court err in failing to find that 23 Pa.C.S. Section 3701 contains a provision for the modification, suspension, or even termination of alimony, and in failing to find that it had both the jurisdiction and power to consider the Emergency Petition for Special Relief to Terminate Alimony and Request for a Hearing Filed by [Husband]?

2. Did the trial court err in granting the [Wife’s] Motion to Dismiss [Husband’s] Petition to Terminate Alimony?

3. Did the trial court abuse its discretion or commit an error of law in failing to permit the calling of witnesses, the presentation of evidence and the cross-examination of witnesses before issuing its May 1, 2019 order?

4. Did the trial court abuse its discretion or commit an error of law where it appears from a review of the record that there is no evidence to support the [trial] court’s findings?

Husband’s argument relies heavily on 23 Pa.C.S. Section 3105 on the effect of agreements between the parties which provides:

(a)  Enforcement.--A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.

(b)  Certain provisions subject to modification.--A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.

(c)  Certain provisions not subject to modification.--In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

The court found that because the alimony obligation arose from the marital settlement agreement that was incorporated but not merged into the divorce decree it survives the decree and is enforceable at law or equity.  The agreement is governed by the law of contracts unless the agreement provides otherwise. The court goes on to state that the terms of the agreement cannot be modified by a court unless there is a provision in the agreement that specifically provides for judicial modification.  

A settlement agreement is “not governed by statute, but [by] express mutual agreement of the parties.” See Woodings v. Woodings, 601. A.2d 854, 859 (Pa. Super. 1992).  Alimony payments, therefore, are “not to be subject to modification by the court” unless the agreement contains a “specific provision to the contrary.” 23 Pa.C.S. Section 3105(c).  The purpose of marital settlement agreements is to encourage agreements by the parties in that the court will encourage them as written.  See Egan v. Egan, 125 A. 3d 792, 798 (Pa. Super. 2015).  

HUSBAND REQUESTED A HEARING TO PRESENT EVIDENCE AND TESTIMONY.

Husband also argued that the trial court should have held a hearing where he could present evidence and witness testimony.  Aside from attempting to prove his “changed circumstances,” Husband also wanted to show the “intent of the parties to the martial agreement.”  In his emergency petition, Husband outlined the evidence he planned to submit which went to the change in circumstances. Therefore, even if the court accepted his allegations as true, Husband had no legal basis for relief because a marital settlement agreement that does not specifically allow for modification cannot be changed. The trial court also found that the terms were clear and unambiguous and there was no need for a hearing to determine the parties’ subjective intent.  Finally, since Husband did not allege fraud, misrepresentation, or duress he failed to raise any claims that could entitle him to relief.  

The court upheld the trial court’s conclusion that Husband was not entitled to an evidentiary hearing or a modification to the alimony payments.   

FORGET THE ENGAGEMENT RING, GIVE ME BACK MY DEPOSIT FOR THE HOUSE

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The Pennsylvania Superior Court recently addressed how gifts in anticipation of marriage should be distributed when the marriage does not take place.  Usually, we are thinking about engagements rings, but what about the down payment for a house? In McGoldrick v. Murphy, 2020 Pa. Super 24 determined whether the down payment was recoverable once the parties split.

The parties, Megan and Joseph, began dating in July 2010 and started living together a few months later. They lived together in Joseph’s residence for 6.5 years. In approximately December of 2015, Megan and Joseph decided to marry. They also decided to look for a home to purchase together and put Joseph’s plan on buying an engagement ring on hold.   In late 2016, the couple purchased a home for $205,000. Because Joseph had the financial means necessary to close on the home and Megan was more creditworthy than Joseph, the two agreed that Joseph would withdraw the needed money from his retirement fund and Megan would solely execute the mortgage note, though the record reflects that both parties executed the mortgage. 

JOSEPH WITHDRAWS $52,000 FROM HIS RETIREMENT ACCOUNT FOR THE DOWN PAYMENT AND SIGNS LETTERS STATING THAT HE DID NOT EXPECT REPAYMENT.

As part of the mortgage loan application, the bank required Megan and Joseph to sign gift letters to document the source of approximately $52,000 that Joseph withdrew from his retirement account in two transactions. In the letters, Joseph referred to Megan as his This “fiancé” and stated that “no repayment of the gift is expected or implied in the form of cash or by future services of the recipient.”

On December 29, 2016, Megan and Joseph closed on the home, taking it as joint tenants with the right of survivorship. They began to share in the home-related expenses and made renovations.  They moved in in March of 2017.  Joseph gave Megan an engagement ring in June of 2017.  On March 10, 2018, however, Megan ended the engagement and returned the ring to Joseph. Joseph remained in the home and stopped paying his share of the expenses.  Megan assumed payment of all of those expenses until she permanently moved out in August 2018.

THE PARTIES AGREE TO SELL THE HOUSE BUT CAN’T AGREE ON WHO GETS THE WHAT.

Shortly after Megan returned the ring in March of 2018, Joseph filed a complaint in equity- partition. In September of 2018, the parties agreed to list the home for sale and that the proceeds would be placed in escrow with the title company and that the trial court would determine the division of the assets.  The home sold at a loss yielding $41,884.86 and they received a homeowner’s credit of $101.  The parties could not agree on the division. The court then award $5688.43 to Megan, which was 50% of the money she spent on home-related expenses from April through to October 2018.  Joseph was awarded $36, 297.42 to Joseph which was the remaining amount.  

Megan filed a post-trial motion, which was denied.  Megan then filed a notice of appeal.  Megan raised the following issues:

1. With all parties and the trial court in agreement, have the requirements of a Part 1 Partition Order been met?

2. Does a signed writing, “Gift Letter,” which expressly identifies the donee as “Fiancé,” and states that “no repayment of the gift is expected or implied in the form of cash or by future services of the recipient” trump prior court holdings of gifts in contemplation of marriage which did not involve express, written waivers?”

Pennsylvania Rules of Civil Procedure 1551-1574 split a partition action into two, distinct, chronological parts.  The first part of the Partition is to “a possessory action; its purpose and effect being to give to each of a number of joint owners… his [or her] share in severalty.”  See Johnson v. Gaul, 228 Pa. 75, 77 A. 399, 400 (Pa. 1910).  

The second order, does one of three things: “(1) divide the partitioned property among the parties to sell their interest in the land to one or more parties, or (3) sell the land to the general public and distribute the proceeds among the parties.”  Kapcsos v. Benshoff, 194 A.3d at 141-142. 

Megan theorized that by Joseph starting the partition  action and the parties then agreeing to sell the home and, if necessary, have a judge determine the division of the proceeds, the sale and the agreement now changes the ownership of the proceeds to a tenants in common, which means that they should equally split the the proceeds.  The trial court did not agree with this argument. 

WAS THE $52,000 THAT JOSEPH CONTRIBUTED A  CONDITIONAL GIFT?

The next issue is whether the $52,000 that Joseph contributed was actually a conditional gift in contemplation in marriage.  Recall the letters that Joseph and Megan signed that indicated that it was a gift and there was no intention to repay back the money.  The court turned to Nicholson v. Johnston, 855 A.2d 97, 101-102 (Pa. Super. 2004) which affirmed previous caselaw and Restatement (First) of Restitution Section 58 (1937) which provides hat gifts made in the hope that a marriage contact will result are not recoverable absent fraud.  However, there is an exception for engagement rings, family heirlooms, or things intimately connected with the marriage.  The Reporter’s note suggests that the focus is on whether the money or things transferred in contemplation of marriage in the sense that they were to be used by the parties in marriage. Gifts of considerable size are assumed to be conditional.  Fault is also not an issue.

The Court held that the $52,000 gift was clearly for the purpose of purchasing a marital residence for Joseph and Megan to live in as husband and wife. The gift letters were necessary to achieve that purpose and did not extinguish the condition of the occurrence of marriage. Therefore, when the relationship between Megan and Joseph ended, the gift’s purpose could no longer be achieved. When the house sold, Joseph was entitled to recover the remaining escrow balance in the amount of $36,297.42 which represented partial reimbursement of his payment of the money needed to purchase the home.

What does this mean for you? If you are considering a large purchase with your fiancé, consider options to protect both of you in the event the marriage does not take place. If you have questions regarding this issue, 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.

Coronavirus, Custody Exchanges, and Emergency Filings

A recent order by President Judge Idee C. Fox addresses custodial exchanges during the Governor’s Stay-at-Home Order. It also addresses emergency custody petitions. Both are addressed in this video, but a link to the Order is provided. below.

Here is a link to the documents referenced in the video:

First Judicial District of PA Admin. Governing Board Order No. 18 of 2020

Emergency Petition, Domestic Relations Information Sheet, Criminal History Verification Form

Email to Send Petition and Attachments: custodyemergency@courts.phila.gov

Contempt of a Support Order and Suspended Sentences As Punishment

Can the court impose a suspended sentence for contempt of a child support order? In a recent Superior Court decision, Thompson v. Thompson, the Court determined whether a trial court could impose a suspended sentence for civil contempt thought it is not expressly permitted as a form of punishment under 23 Pa.C.S. 4345.  

Here is the background of the case. Mother placed her two children in the custody of her mother. Grandmother then requested child support from mother. The trial court computed mother's support obligation pursuant to the child support guidelines and entered an order. Mother fell behind in her payments. The County then filed petitions for civil and indirect criminal contempt against mother. Trial court ordered mother to remain current with her payments and added an additional monthly amount for her back support.

Mother again fell behind. Grandmother asked the County to terminate the support case, but the County officials declined to do so and filed another contempt. Prior to the hearing on the contempt petition, mother and the County came to an agreement. Mother admitted that she was in civil contempt. Mother agreed to stay current with her payments, acknowledged she had the ability to make the payments and agreed that if she failed to remain current, a bench warrant would be issued and she would serve a six-month jail sentence. 

Mother filed an appeal and argued that a suspended sentence was not an allowable punishment under Section 4345 and was therefore an illegal and unenforceable punishment.  In its analysis the Court noted the law was not ambiguous and provided three express punishments that were permitted in this situation. Those included imprisonment for up to six months and a fine not to exceed $1000 or probation for a period of up to one year. The statute does not include any language allowing the trial court to have any discretion to impose any other form of punishment.  

In a dissenting opinion, Judge Baer opined that since a suspended sentence could constitute probation and probation is an allowable form of punishment under Section 4345, a suspended sentence is not an illegal form of punishment.  Judge Mundy joined in that opinion.  

It is very important to understand the agreements you enter into and the consequences of breaching or breaking that agreement. 

Medical Marijuana Use and Custody

Medical marijuana use is a hot topic all over the country. With so many states allowing the legal use of marijuana for medical purposes, and many legalizing the use recreationally, we will start to see more and more cases that address the use of marijuana in different areas of law. In a recent case, H.R. v. C.P. 2019 PA Super. 357, in the Pennsylvania Superior Court, this Court addressed the use of medical marijuana in a child custody matter. 

Father and Mother (H.R. and C.A.R.) met while both were students in college. Both Father and Mother struggled with substance abuse. Father's recreational use of marijuana was a recurring issue during the custody battle.

After father's and mother's relationship dissolved, pursuant to a stipulation of the parties, grandparents maintained primary physical custody after mother alleged father had fed the child a marijuana-laced graham cracker. Mother and father and grandparents all shared legal custody. Mother had physical custody of up to four hours on alternating weekends. Father had physical custody for three-hour periods of supervised visitation on alternating Saturdays. 

Father filed a motion to modify the custody stipulation. The trial court awarded grandparents physical custody pursuant to the terms of the initial stipulation except that it conditionally stopped  the supervision requirement for father's periods of visitation "upon father's willingness to demonstrate sobriety and continued abstinence."

Father filed yet another motion arguing that the current custody arrangement was contrary to the child’s best interest and that his receipt of a medical marijuana license meant that the trial court should no longer weigh his marijuana use against him. Grandparents filed their own motion challenging the findings regarding father's medical marijuana license and the reliance upon it to discount father's history of recreational drug use.

The trial court ruled that, based on the best interest factors and the concerns raised by grandparents, it would continue the prior custody arrangement and reinstate the drug testing condition for father's exercise of unsupervised custody. The trial court held that the custody officer erred in relying on father's certification that he was licensed to use medical marijuana since father failed to submit medical evidence that he had an affliction necessitating its use or the effect that his use would have on his parenting ability.

On appeal, the court affirmed the trial court's custody order. The appellate court rejected father's apparent contention that the Medical Marijuana Act barred the trial court from considering father's use of marijuana pursuant to a medical marijuana license in the trial court's best interest determination. Instead, the appellate court noted that the act expressly reaffirmed that courts could consider a parent's marijuana use in the best interest analysis. Courts can also consider a parent's use of other legal narcotics to treat chronic pain in determining whether such use impacted a child's best interest. The court held that the trial court did not abuse it discretion to consider father's marijuana use given his history of substance abuse and alleged incidents of having child ingest marijuana.

In summary, the courts are not stopped by Medical Marijuana Act from considering a parent's legal use of marijuana pursuant to medical license, particularly where parent had history of substance abuse and where there were alleged incidents of exposing the parent's child to marijuana. 

If you have questions regarding this issue, 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.

Non-Biological Father Determined to be the Legal Father: A Case of Paternity by Estoppel

In a recent case S.M.C. v. C.A.W., 2019 PA Super 318, the Pennsylvania Superior Court addressed the doctrine of paternity by estoppel. Under this doctrine, a person can be ordered to pay child support for a child that is not his biological child. 

In the case, a man and a woman lived together with the woman’s daughter for approximately 12 years (since the child was a baby). Although he knew he was not the biological father, the man held himself out as the child’s father, supported the child financially and claimed the child as a dependent on many of his tax returns. He began living with child and her mother when the child was approximately 1 year old. According to the opinion: “from April 2003 through January 2015, the woman and the child lived together with the man in the man’s home. The appellant held himself out to be the child’s father and performed parental duties on the child’s behalf, treating the child the same as his own biological daughters.” The man also referred to the child as his daughter when introducing her to others and the child referred to him as her father or her “daddy.”

According to the opinion, the court determined that the child suffered a serious adverse emotional impact when the man broke up with the mother and ceased contact with her. The court also concluded that it was in the child’s best interest to apply the paternity by estoppel doctrine against the man and require the man to pay child support. A temporary child support order was entered. The sole question in the appeal was whether the trial court abused its discretion in concluding that the man owed a duty of support under the paternity by estoppel doctrine. Previous Court opinions have made it clear that the lack of biological relationship does not defeat the application of paternity by estoppel. According to the Supreme Court, the validity of the paternity by estoppel doctrine rests only where it can be shown, on a developed record, that it is in the best interests of the involved child.

Because family law cases are fact sensitive, the application of the doctrine, by reviewing the appellate case law, is complicated. If you have questions regarding this very difficult issue, 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.

Name Changes and Children: Court Considers Notice Where Mother Seeks to Change Name of Biologically Female Child to a Traditionally Male Name

In a recent case filed in this Family Division of the Court of Common Pleas of Lebanon County, the mother of a 16-year-old biologically female child has requested that the child’s name be changed to a traditionally male child’s name. Because the mother could not provide proof of notice to the biological father of this proposed name change, the court has put the matter on hold. The biological child’s legal father must be notified of the request for name change. Name changes in Pennsylvania are governed by 54 Pa. C.S.A. 701. Because the subject matter addressed in this case has not been presented to this court previously, the court found two cases from other jurisdictions and also researched medical doctrine.

The court held that seven items set forth in another case regarding a child’s best interest were relevant. These factors include the child’s age, length of time the child had tried to use the proposed name, the potential anxiety or discomfort that would result from using a name that did not match the child’s outward appearance, the child’s mental health counseling, whether others in the family or community utilize the child’s proposed name, the child’s preference and motivation for seeking a name change, and parental support for the name change.

As previously indicated, Pennsylvania law requires that both parents be given notice of any hearing that implicates a child’s change of name.  Furthermore, if the legal father opposes the name change request, the court would want to hear and analyze the father’s motivation and reasoning for this opposition.  

The court has indicated that no final decision regarding the name change could be made until the court hears from the father and has adequate time to analyze the situation. The medical and psychiatric communities are divided about the subject of gender transformation. Therefore, the court has indicated that it will conduct a more comprehensive inquiry to the child as well. 

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.