Author: bretrgoldstein@gmail.com

One of the issues that we confront on a regular basis getting child support paid.  Typically, when W2 employee the domestic relations section can have an Order issued and wages garnished.  Even though there may still be issues with obtaining expenses the payee sill has the relatively firm knowledge that the base child support amount will be paid.  Not so for the individuals that have the unfortunate problem of being paid by an independent contractor.  There is no garnishment for independent contractors and thus, there is no real surety of payment.  Moreover, there is a constant battle with independent contractors and proprietorships in Court with regard to how much money is actually being made by the payor – as they constantly attempt to hide income and or argue that their total income should be reduced.  We have seen ridiculous allegations where gross receipts of a contractor can be in the $150,000.00 range where the contractor alleges net profits of less than $30,000.00.  These individuals will do anything to avoid payment of their fair share of child support.

Moreover, although there are statutes on the books which compel payment, they are difficult to enforce in the Court system simply because most Judges do not want to fairly enforce them.  Most of the time the Judges do not want to use the enforcement weapons that they have available to them.  They don’t want to jail the individual simply because a person in jail can not earn money to pay child support.  Moreover, a person with a missing license can not drive to work.  Mostly what we see occurring is that the individuals let their payment responsibilities lie fallow until they are hauled into Court and then they pay just enough to get them out of immediate threat until they are hauled into Court again.  This isn’t good enough.

There should be some legislation which allows the Court system and Domestic Relations to have access to the bank accounts of independent contractors and or proprietorships   One suggestion is legislation that would compel the payor to provide access to the bank accounts of the contractor in order to have money garnished from the account if the payor does not pay.  There could be a series of tools for domestic relations to use if the money is not paid. 

One of the most difficult decisions that an attorney and client face, is the determination as to when to file a Petition for Contempt of custody orders.  The general burden of proof in the Commonwealth of Pennsylvania for contempt of a custody order is proof of a violation of the Order by a preponderance of evidence along with proof of willfulness in the violation of the order.  This is obviously an incredibly subjective standard.

Typically, in high conflict divorces with contentious custody battles, both parties tend to commit acts of contempt.  But the reality is that filing a Contempt Petition for each and every violation of the custody Order is a mistake.  For instance, filing a Contempt Petition if someone is a half an hour late to pick up or drop off is probably a mistake no matter how irritating or disruptive this lateness may be.  The reality is that your attorney will probably want to see a pattern of abuse of this type of order over a period of time involving at least a month prior to filing for contempt.

Secondarily, a tactical question that must be asked, is what on can actually gain from filing for contempt. The unfortunate fact is that at the very best, you will get your ex-spouse reprimanded by the Court and perhaps the Court will issue a fine.  But if you are dealing with a wealthy opponent, they could simply pay the fine and continue to act in contempt of the Order.  Other individuals won’t even bother to pay the fines, forcing your attorney to spend time and effort and your money in an attempt to enforce the penalties proffered by the court.

In our opinion, a Contempt Petition should only be filed when there is a clear pattern of abuse or if you conclude that the type of contempt in which the opponent engages, ends being strategically important in a future custody battle. Such strategically useful contempt judgements would include failure to bring children to planned activities, medical treatment or scholastic endeavors.

Although frequently, violations can be extremely irritating, simply filing Contempt Petitions without a plan of action for the use of the contempt is probably a waste of time and your money.

The thing that I absolutely can’t stand during the litigation of a divorce and in particular, custody, is when a parent is so emotionally involved in injuring the other parent, that they demonstrate that anger though the children. I have been in litigation, where parents have said to other parents, that they will make the children hate the other parent. In other words, they will talk badly about the other parent. They will blame the other parent for perhaps their change in financial situation or for their sadness. They will say mommy did this to me. Daddy did this to me. Daddy broke up our family.

I think it is despicable to use the children against another parent. What this means is that the desire for vengeance, deserved or undeserved, is more important than the future emotional life of the children. In other words, the rest of your children’s emotional life is less important than what you want. It is unforgivable. I see this so often in situations where the person filled with anger is not really entitled to their anger. For instance, I have seen fathers who have never worked and never contributed economically to a household, filled with fury when a mother gets sick of their failure to provide combined with emotional abuse. The father’s cushy life doing nothing is gone and they are angry and take that anger out on the mother and the children.
Don’t be that person. Children are smarter than you think. Children are more perceptive than you think. I have polled innumerable twenty-five year old children who are products of divorce and the thing that their parents do that they hate the most is talk demeaningly about the other parent. Do not be that person. Do not be that parent.

You are in the middle of a divorce and custody is at issue.  You feel lost.  You went and looked up the custody factors online to try to educate yourself, but the factors just leave you lost, as you are unsure which factors are important and which are not.   Over the years, our experience with custody mediators, hearing officers, conciliators and Judges have given us an idea of what kinds of evidence is important in a fact finder’s determination of who gets custody. 

Please know that every fact finder at all levels have different perspectives regarding what is important in custody determinations.  However, there are some elements that you will almost immediately be questioned regarding by a fact finder. 

Typically, the first questions that will be asked of you will be whether (1) you have any mental illness, (2) you have any past criminal convictions and (3) do you have a substance abuse problem.  Please note that all of these issues are not necessarily an impediment to obtaining custody – but the big thing to remember is do not lie about your past!  Let’s deal with each of the issues. 

First mental illness, no matter what kind of issues you may have in your past, can be dealt with – if you prove that you are taking care of the problem, by either taking medication or undergoing therapy or both.  If you take these actions to handle your issue, then for the most part mental health issues are not damaging to custody attempts. Please note this is not to say that mental health will not be an issue.

Second, criminal convictions likewise are not fatal to attempts to obtain custody. Obviously, convictions for child abuse are a serious problem and you will find significant difficulty in overcoming this in your past history in this respect. However, most factfinders will, if they see attempts to obtain therapy and or significant temporal distance between the criminal behavior and the custody attempt, decide to lessen the impact of such convictions. Again, like mental illness, past criminal convictions are not a significant positive, but they can be overcome.

Finally, a substance abuse problem is not an impediment to obtaining custody. Typically, if an individual has a substance abuse problem the court will order monthly hair follicle tests to determine if a parent is still using alcohol or other illegal substances. Typically, in these cases, the court wants to reunite the substance abuser with their children. However, the substance abuser will have to undergo testing and will likely have a gradual increase in the amount of time spent with their child. The court will slowly increase time and look for proof that the individual is no longer affected by substances and is performing their duties as a parent correctly.

After the above-mentioned issues, one of the other major issues that can be a significant impediment to obtaining custody is either the failure to obtain medical treatment for the children or dismissal of diagnoses and prevention of the claimant obtaining medical treatment. If a child is determined to need medical treatment for a medical diagnosis or psychiatric or learning diagnosis and apparent either does not obtain that treatment or disputes the diagnosis and refuses to obtain medical treatment or can in these cases take away significant legal custody from a parent. The court will act decisively to ensure that a minor child is obtaining the medical treatment necessary to treat their condition. Evidence of failure to obtain this treatment by a parent often leads not only to reduction of physical custody but also legal custody.

Next, which seems to be important to factfinders are patterns of behavior from a parent. In particular a parent who refuses to take children’s extracurricular activities or fails to pay for those activities can also be seen as a significant negative especially if the extracurricular activities predated the divorce. They are to take the children to sports practices, music lessons, religious classes or other extracurricular activities will be seen as a parenting failure by the court. This does not mean if there are one or two missed times that this will be powerful evidence, what you need to see is a consistent failure to have children attend extracurricular activities. Improving this, you must be able to prove that the parents knew about the extracurricular activity and did not have a valid excuse for failing to attend. Moreover, it is helpful if the child wants to actually go to that activity.

Then there would be a series of behaviors which we would fall into calling judgment determinations. For instance, dropping off a child and leaving them in front of a home in inclement weather without ensuring that an adult is home and that there is a solid custody exchange is good evidence of a failure of parenting. There are also other actions which also tend to injure one’s chances of obtaining further custody such as allowing a young child to do explicit social media posts. The bottom line is anything that can be seen potentially as a failure of judgment by a parent would be a mistake.

Inability to communicate properly is also a problem. Ferry to go on our family Wizard to check out information provided by the other parent and/or refusal to cooperate with the other parent by provision of information with regard to doctors’ appointments, dentists’ appointments and school issues also could have a negative effect.  Parents should be able to adequately provide each other information regarding these activities.

You must remember that your spouse can be as mean as possible to you but still be involved in school, take the children to medical appointments to obtain treatment and get the child to their extracurricular activities and their cruelty to you is not an impediment to their continuing ability to obtain custody in court.

It should also be noted that courts prefer a 50-50 custody situation. You will have to prove that somehow the other parent is inadequate as a parent in order to affect custody determinations.

Remember, to obtain documentary evidence or produce a recordation made contemporaneously with the parenting failures that you observe. It is probably better to provide your counsel everything that you have and let them make the determination of the value of the evidence you provide.

Hopefully, this will help you make a determination as to what is important and what is not important in custody determinations.

In the Interest of A.M. a minor, a Decision issued by the Superior Court of Pennsylvania on June 9, 2018, extended, in a case of first impression, the standing of parentage in a same sex marriage.  In A.M. the parents were legally married in Allegheny County in February 2015. This is a marriage of two individuals of the same sex who are women. It should be noted however that the Court often refers to one of the individuals as “father” and uses the pronoun “him,” at the request of one of the parties.

After the child was born, the Allegheny County Office of Children, Youth and Families obtained an emergency protective custody order for the child along with her half siblings and placed the children with the maternal grandmother.  The same sex parents had a difficult marriage riddled with conflict and at times, violence.  At the initial adjudicatory hearing, the status of one of the parents as a parent was raised. It was notable that both parents are listed on the child’s birth certificate and should be regarded as the child’s legal parent. The initial Court found that the same-sex individual who was the non-biological parent should not be regarded as a parent.  The mother of the child indicated that her partner had been missing for over a week and that she intended to separate from her partner because the relationship was hindering her progress towards regaining custody of her children. The Court ended up ordering the child remain in place with her grandmother and then scheduled a permanency review hearing.

At the final hearing on April 9, 2018 the parties argued on whether the presumption of paternity applied to a non-biological same sex spouse who was married to the biological mother at the time of the birth. The initial trial Court issued an order denying the same-sex spouses request for standing in June 2018. The matter was then appealed to the Superior Court. The court noted that the presumption of paternity was one of the strongest presumptions known to the law. The law indicates that if a woman gives birth during her marriage, her spouse is considered the other parent of the child.  This presumption of paternity preserves marriages and applies where the policy is advanced by one of the parties.

The Court found that both same-sex parties were married and the child was conceived during this marriage.  The trial court found that the presumption was not applicable because the same-sex marriage was no longer intact.  The Superior Court however found that although the marriage was riddled with challenges and difficulties, the simple existence of troubles in a marriage did not eliminate the presumption of paternity.  Moreover, since there were no divorce proceedings, thus the Court found that the parties intended to remain married and were sporadically attending various treatment programs to improve their relationship. The Court indicated that the non-biological parent did have standing.  The Court stated they had no difficulty in holding that the presumption of paternity is equally as applicable to same-sex marriages as it is the opposite sex marriages.  The court referred to other states that have made similar decisions.

This case is extremely important as it gives a nonbiological married partner standing with regard to custody in Pennsylvania courts.

The calculation of personal income for the purposes of support in the Commonwealth of Pennsylvania is both a mathematical calculation and an art containing both objective and subjective components.  Matthews v. Matthews, 2013 Pa. Dist. & Cnty. Dec. LEXIS 490 (2013) is a good example of this objective and subjective calculation. 

In the Commonwealth when calculating net income for support purposes, a trial court must go through a process of determination of gross income, then monthly gross income and finally from the monthly gross income calculation tackle the expenses and taxation which result in the monthly net income.  Deductions and expenses may be deducted from the gross income to achieve the monthly net income and often this is done using a forensic CPA.  The Court must look at the unreimbursed business expenses and then determine which shall be deducted from the monthly gross income.  This involves an analysis utilizing the testimony of the parties and experts who proffer opinions on the whether the expenses are bona fide. 

The Court does this by determining which specific expenses can be deducted from the gross income.  The analysis generally involves a determination of whether the expenses are simply accounting fictions that do not have actual effects on income, such as depreciation and true business expenses, such as the cost for repair of a truck used by the business.  Many deductions and expenses straddle the line between business expenses and personal expenses, such as the company paying for a cell phone or for a BMW.  The Court must wade through the tax returns and books of the parties in order to determine which expenses are valid business expenses and which are simply personal expenses paid for by the business.  Courts typically refer to whether a deduction or expense “reflect(s) an actual reduction in available cash.” Matthews, Supra. 

As a result of the way Courts view determination of income, the defendant who owns their own business should come armed with evidence supporting the defendant’s perception of his or her own income.  The numbers on the tax return must be defended by the business owner. 

In Matthews, Supra. the husband owned several properties including a shore home and he deducted the mortgage payments on the shore home as a business expense on his taxes.  The Court found that this mortgage deduction was a personal expense rather than a business expense and disallowed the expense for the purposes of income calculations.  The moral of the story is that vacation home mortgages are not allowable business deductions.

In Matthews, Supra. the Court disallowed a large expense for professional services, which can include legal fees or accounting costs.  In the matter at bar the personal services deduction was quite high, but more importantly the Defendant did not adequately justify the fact that the personal services were business related.  Thus, the Court chose to lower the total amount allowable as a deduction in the calculation of gross income.  Thus, be prepared to defend and explain the personal

The Court also covered automobile deductions which again were inadequately explained.  Interestingly the Court did not simply disallow the expenses for personal use – but this was likely because the husband only deducted portions of the automobile expense.  Nevertheless, he inadequately supported the deduction and the Court disallowed half of the expense.  Likewise, he did not support his rental property income and the Court disallowed approximately half of it.

The bottom line is that if you include an expense on your business tax return, you must be prepared to defend the expense and support it with documentary evidence in Court. 

Cheating.  Ignoring the moral issues incumbent in such situations, typically in most states if the adultery can be proven, it can be used as a cause of action for divorce and can also result in an inability of the cheating party to get spousal support / alimony.   Simply put if you cheat you will have a minimal (if any) chance of getting spousal support in the Commonwealth.

This article, however, is less about the negative legal ramifications of an adulterous relationship than about the emotional consequences both to the cheater and the person who is the victim of the adulterer.  Bringing a third individual into your relationship is not the answer to your problems.  It will not make you happier as a person or in your marriage.  In the short-term hormones take over and the bloom is on the rose and feeling like you are “in love” is addictive.  But your affair will not make you happier or more satisfied as a person.   Initially it may feel exiting but that will not last. 

The seduction comes from behaviors that can be very typical in a marital relationship.  Disagreements.  Arguments.  Bickering about the children.  The division of labor between the parties, which always seems to be unfair in some way to one of the parties, can be a source of irritation and pain.  Money can all be issue and is reportedly the cause of many marital breakups.  And thus, the person that you love becomes a source of what you feel is pain and unfairness – from your perspective. 

So, then you meet someone and the message you get from them is entirely positive.  The new person is attracted to you.  That attraction makes you feel valued.  The new person tells you how great you are, not what you have not done, or what you should be doing.  In comparison your spouse or significant other seems a source of criticism.   This is an inevitable emotional process that no matter how open we are to our spouses, criticism or implied criticism makes us feel bad.  It may even make us feel angry at the person who criticizes us – because they, of course, are not perfect either.  And so, this other person seems fantastic and positive in comparison and a source of positive feelings and new physical attraction.  But this feeling is a lie.  The new person is not faced with making the same life decisions with you as your spouse.  They do not cause or feel the same stresses or restrictions caused by a marital relationship – especially that involves children.   

Then what happens when your children find out?  Are you really considering the permanent damage you will do to them?  Are you considering the trust issues they might develop in relationships?  They are the innocents in all of this. 

Intermarriage between individuals has become more and more common in recent decades.  However, when individuals from such marriages divorce, the post-divorce determination of what religion that the children are raised in can become a vicious and contentious disagreement.  The seminal case in the Commonwealth of Pennsylvania that speaks to this matter is Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (Superior Ct. 1990).  Please note that there are many fact specific cases regarding this issue. 

In Zummo, Supra. the father is Catholic and the mother, Jewish.  They had three small children ranging in ages from three to nine.  Historically, there was no debate that the parties had agreed to raise the children in the Jewish faith.  At the time of the argument the two older children were going to Hebrew School and there was an Order of the Court indicating that the father must bring the children to Hebrew School during his custody time.   The father in all respects obeyed this Order and did not interfere with the children attending Hebrew School.  However, at some point during the post-divorce separation, the Father began bringing the children to mass at a Roman Catholic church.  The mother immediately objected to this and went to Court to prevent the father from bringing the children to Church. 

The testimony from the parents established the fact that the father did not disagree with raising the children as Jews.  He obeyed the Court Orders about bringing the children to Hebrew School during his custody time.  However, he stated that although he was not particularly religious, he was bringing the children to Church because he felt that the exposure provided information about his Italian Catholic culture and he wanted them to have knowledge of this cultural background.  The mother agreed that although the two older children had begun to learn about their religion the youngest child had not yet been exposed. 

Initially the trial Court sided with the mother and indicated that bringing the children to Church would be damaging and confusing.  The Court felt that the two religions were essentially incompatible and exposing the children to Catholicism would be harmful.  However, on appeal, the Superior Court disagreed.  The father argued that he should be allowed to expose his children to his religious and cultural background.  The Court agreed with the father and based this determination on Constitutionally guaranteed religious freedom.  The Court noted that religious freedom was Constitutionally guaranteed and the even an agreement that the children should be raised as Jews could not bargain the essential religious freedom away.   The Superior Court held that parental authority included the right to pursue whatever course of religious indoctrination that a parent saw fit to engage in during periods of lawful custody or visitation.  The Court would not prohibit a parent from exercising their right of religion and the exposure of their children to their religion during their mandated custody periods. 

The Decision discussed the history of the law of custody and discussed parental authority, gender bias in custody and religious freedom.   The Court weighing all these issues, concluded that the objecting parent must establish a substantial risk of harm in absence of the restriction proposed. Thus, in this case the Court overturned the prior Court’s restrictions on the Father’s ability to take the children to Church.   Further it abrogated post-divorce religious agreements which would restrict free access to religion. 

Consideration of the presumed irreconcilability of Judaism and Christianity in this case was constitutionally impermissible and an abuse of discretion.  The Court specifically rejected speculation by parents and by experts as to potential future emotional harm to a child based upon the assumption that such exposure is generally harmful.  In the dicta of the case the Court specifically indicated that harm must be significant and specific.  The implication is that perhaps testimony from a psychological expert about specific harm might sway the Court.   But the reality is that there is much strong language asserting that religious freedom is constitutionally protected, and a parent can expose their children to religion as they see fit. 

Thus, it will require very specific showing of harm to prevent a parent from exposing a child to religion even if the religion is very significantly different in belief system to the child’s previous exposures. 

During the divorce process, firearms present an interesting complication for numerous reasons.  Most recently Act 79 was passed in 2018.  This Act made changes to the statues effecting individuals who own firearms in a divorce.  Often during divorces, Petitions for Protection for Abuse are filed.  If an individual has a PFA Order against him the individual shall divest themselves of the firearms in their possession.  Section 6108.3 reads in pertinent part as follows: § 6108.3.  Relinquishment to third party for safekeeping.

• “General rule.–A defendant who is the subject of a protection from abuse order, which order provides for the relinquishment of firearms, other weapons or ammunition during the period of time the order is in effect, may, within the time frame specified in the order and in lieu of relinquishment to the sheriff, relinquish any firearms, other weapons or ammunition for safekeeping to a third party who meets the requirements of a third party under subsection (b) (O)  An acknowledgment that the third party is one of the following:

(I)  An attorney at law, and further acknowledgment that the attorney at law and the defendant are in an attorney-client relationship. The attorney at law and the defendant shall sign a written agreement stating in substantially the following form: “Firearm(s) can be relinquished to the attorney at law upon the express, written condition that firearm(s) will be returned to the defendant, or otherwise transferred, only if in strict conformance with applicable law.”

(II)  A commercial armory, and further acknowledgment that the owner or operator of the commercial armory is not a family or household member of the defendant; the commercial armory is a secure storage facility designed to store firearms; the commercial armory possesses all Federal and State licenses to store firearms; and a form stating substantially the following: “Firearms can be relinquished to the commercial armory upon the express, written condition that firearm(s) will be returned, or transferred, to the defendant only in strict conformance with applicable law.” (3).”

The significant change here is that one used to be able to relinquish the weapons to a “third party.” This could be a friend under the old law but preferably a trusted third party willing to take on the responsibility.  Under the new law, this possibility has been eliminated.  Now only an armory or an attorney can hold such firearms.  There are also stringent rules for their keeping contained in the statute.  

Without getting into a political debate about guns, having them in your possession during a divorce is an unnecessary complication which has the potential for extremely negative consequences.   Obviously, we all have emotional connections with the things we care about.  Guns have a way of becoming precious to us, as they may represent a means of protection, individuality and Constitutional freedom.  Guns can escalate an argument into something much worse.  This should be something to ponder.  

The effects of criminal convictions on Divorce and custody issues is potentially very damaging.  In Commonwealth v. Kiely, 2019 Pa. Super. Unpub. LEXIS 982 (2018), a father after finding out about these consequences attempted to have his plea overturned in order to avoid the consequences of the conviction.  In Kiely, Supra. The Father pled guilty to one count of driving under the influence (DUI), 75 Pa.C.S. § 3802(d)(1)(ii).  He did so at least putatively with the advise of counsel, although in his appeal he attempted to argue that his counsel did not properly inform him of the consequences of the plea deal.

In particular, the Father alleged that the plea deal effected voting rights, child custody issues, firearm ownership rights and apparently resulted in a driving suspension.  Our Supreme Court has held that a defendant’s lack of knowledge of the collateral consequences of pleading guilty does not undermine the validity of his guilty plea. Commonwealth v. Frometa, … 520 Pa. 552, 555 A.2d 92 ([Pa.] 1989).   The bottom line here is that the Court concluded that the Father’s understanding of the consequences of the guilty plea or lack thereof, was not reason enough to overturn the conviction.

Now, why is this particularly important in a family law context? 

Criminal convictions can be the lodestone of a custody Decision.   Having read many custody Decisions by Judges, one thing becomes clear – of the many custody factors mentioned in these Decisions most of these cases are stated to be neutral between the parties.  The criminal conviction may be the tipping point on one of the custody factor determinations so that the Decision swings on that factor.   Moreover, the fact that in particular, this Father was picked up for driving under the influence, would certainly affect whether a Judge felt that the Father was a good custodian in the transportation of the children.  Moreover, the fact that the Father may have lost his driving license is also problematic.

In the Commonwealth of Pennsylvania, a DUI conviction also acts as a misdemeanor crime.  In Pennsylvania, the fact that you have a misdemeanor conviction may prevent you from being able to participate in coaching your children – as the vast majority of organizations require background checks and negative results on these checks may be disqualifying.   Moreover, Pennsylvania public school regulations also require background checks for volunteerism in the schools.  Section 111 Criminal History sets forth the requirements and consequences of criminal background checks.  If one is convicted of a series of offenses which relate to the safety and injury of children, one can not volunteer or work for a school district in the Commonwealth.  Individuals who are convicted of felonies and misdemeanors are also restricted from working or volunteering for a school.  Moreover, failing to advise a school that one has been arrested of an offense against children or other crime within seventy-two (72) hours of the arrest may also be disqualifying.  

The bottom line here is that committing crimes and pleading to them, has a far-reaching potential effect on custody actions and may inhibit rights to volunteer in a child’s school or on a sports team or any other organization that regularly has volunteers work with children.