Author: bretrgoldstein@gmail.com

An Acknowledgement of Paternity executed by the father, is the final word regarding paternity in custody matters.   In N.M. v. M.F., 2017 Pa. Super. LEXIS 951, we can see how powerful execution of the Acknowledgement of Paternity is – as it trumps actual paternity testing.

In N.M., the father had executed an Acknowledgment of Paternity as part of a Court Order regarding custody in 2003.  He took part in raising and caring for the child with his girlfriend for five to six years, after which he was incarcerated for eight years for crimes committed.  During the period of his incarceration, the father learned that his girlfriend had been unfaithful to him during the time around the conception of the child.  The first thing he did when he was let out of prison was to file a Petition for Paternity with the Court.

The Court held a hearing regarding paternity and although the Court recognized that the father was collaterally estopped from the paternity test – the Court allowed the test anyway – so that the father could know for medical purposes who his father was.  Well, guess what?

The test indicated that the father had a zero percent chance of paternity.  Oh my.  Someone was very upset.

However, when the father went to eliminate his responsibilities under the custody agreement the Court stated that he was the father and there was nothing he could do.  Under the custody statutes an Acknowledgment of Paternity can be eliminated under only two circumstances.  First, if the Acknowledgment is not revoked within the first sixty days.  Second, after sixty days, fraud, duress or material mistake of fact must be proved.  Apparently the “father” had waited too long and he remained the father of a child that was not biologically his – with all the duties to pay incumbent on this position. 

So, what does this mean?  This means that if you even think that a child might not be yours, ask for a paternity test.  Once you acknowledge paternity – you are the father, even if later, you can prove that you are not.

The Commonwealth of Pennsylvania recognizes grandparental rights.  Many states do not have this recognition.  However, typically in a custody battle between a biological parent and a grandparent, the biological parent has a huge advantage.

As in any disagreement regarding custody, one must always remember that the lodestone of the Court’s decisions is the best interests of the child.  Simply put, the Court cares much less about the disagreements of the parents and the peculiarities of their behavior toward each other, than it cares about how that behavior effects the children at issue.  The Court weighs the evidence of the sixteen custody factors set forth in §5328 and determines which factors weigh in favor of which litigant.  The Court is free to independently value one factor over another in the formation of the Court’s determination. 

However, it is very important to note that in custody determinations between a grandparent and a biological parent, the biological parent the burden of proof is not evenly balanced.  The biological parent has a “prima facie right to custody.”  The balance is heavily weighted toward the biological parent which we can see well demonstrated in M.L.H. v. L.M.C., 2017 Pa. Super. Unplug. LEXIS 4317.  In M.L.H., the biological mother had a long history of substance abuse problems and incarceration.  During periods of incarceration, the maternal grandmother (yes, the parent’s mom) took complete care of the children.  The grandmother enrolled the children in appropriate schools and performed all child rearing responsibilities.  Nevertheless, although the grandmother had long periods of complete custody, there was never an order regarding legal custody of the children which remained 100% with the biological mother.  The grandmother wanted at least partial legal custody and filed numerous motions in this respect.  She presented the children’s teachers, step-grandfather and step-grandfather’s brother as well as two maternal aunts, paternal half-sister, paternal grandmother and the mother as of cross examination on her behalf – all of whom expressed either that the children were flourishing during grandmother’s care or that the biological mother had repeated bouts of substance abuse.  That being said, for the past year, the mother had been sober and had fulfilled all Court duties and child rearing responsibilities.  The mother was doing well over the past year. 

Despite what could be determined to be a mountain of evidence of the biological mother’s past substance abuse and incarceration as well as much evidence from the parties regarding the positive effect of the grandmother in the children’s life, the Court still concluded that the biological mother should retain 100% legal custody. 

The Court reached this decision based upon the fact that the biological mother’s past issues were in the past and that she seemed to be doing what was necessary to get her life in order currently.  Further, the children did not demonstrate any behavioral difficulties and has maintained good attendance.  The Court noted that the presumption in favor of the biological mother can be overcome by clear and convincing evidence.  However, the mother’s past problems were not a strong enough inducement to overcome this presumption.  Simply put the past problems are the mother in combination with the present flourishing of the children in the care of the grandmother were not enough to tip the balance in her favor.

It is wise to understand this inherent presumption if you are a grandparent who intends to obtain a greater level of legal custody in a case where the biological parent opposes this change. 

 

When making custody decisions a trial courts tend to weigh the current behavior of a parent even though the parent may have acted irresponsibly, abusively or even violently in the past.

In J.C. v. J.W., 2017 Pa. Super. Unpub. LEXIS 4033 there was good credible evidence indicating that the Father had a clear history of malicious behavior toward the other parent.  The Court went so far as to find that the Mother had been a victim of abuse at the hands of Father.  The Court found that the abuse had been both physical and verbal.  The Court did note that although there was a history of abuse – that importantly, that there was no recent abusiveness.  The Court further noted that not only had the Father been abusive, the Father had also engaged in subtle attempts to turn Child against Mother, and has engaged in “extremely aggressive behavior,” which has worsened the already high level of conflict between the parties.  The evidence demonstrated that the Father assaulted the Mother, when the party’s son was in the high chair. The testimony indicated, “He went to get my phone out of my purse. We had been arguing the night before. He hadn’t been staying there. He was getting his stuff to move out. And he took my phone over something we were arguing about, and I asked to get it back. He threw me into the door. Then when I got up, he smashed my phone, he kicked me. And my son was screaming and crying in his high chair.”  The bottom line here is that the father had been physically and verbally abusive and had engaged in character assassination against the Mother with the children.  This is obviously horrible behavior – but it is important to note that the Court found that this behavior had occurred in the past.

Despite finding this past reprehensible behavior, the Court nevertheless concluded that there was no risk of harm to the child, and that there was no current credible risk of harm to Mother.   The Court made this determination even though it did find Mother’s fears of potential abuse credible based on the past abuse by Father.  The Court found that the Mother’s fears were reasonable given the past actions of the Father.  The Court also expressed its concerns regarding the potential emotional damage that could be caused to the children by the conflict between the parties.  However, for whatever reason the Court concluded that the past abuse by Father did not prevent the Court from ordering the parties to undergo co-parenting counseling.  The Court did not change custody.
The two takeaways from this decision are first, that past transgressions may have an effect – but that given current normal behavior it is possible to overcome past transgressions.  Second, parties seeking modification should note that it is no foregone conclusion that even with solid evidence of past abusive behavior, that the Court will remove custody from the abusive parent.   Please note that this abuse is abuse between the parties, but not regarding abuse of the child in question.

The question of the burden of proof in the Commonwealth of Pennsylvania regarding what constitutes contempt is pretty clear.   In order to meet the burden of contempt, a party must have committed or not performed actions that are specifically directed by a court order.  The party accusing the other party of contempt must satisfy that burden by a preponderance of the evidence.  The accuser must prove that the person in contempt first, had notice of the specific order or decree which was disobeyed.  This is typically satisfied by either proof that the order was sent to the parent or that the complaining parent has told the violating parent of the nature of the responsibility.  The violation must be proven to be volitional – meaning within the violator’s control.  This means that if unforeseen and uncontrollable circumstances cause the violation or violations, the violator can-not be punished for something that was not meant simply because of circumstances.  Finally – and perhaps the most difficult of the requirements is to prove wrongful intent.  Obviously no one is going to admit that they violated an order on purpose to hurt or anger the other party.  There will always be some sort of excuse by the violating party including exigent circumstances. To prove the mindset of the violator, circumstances, emails, communications must be used in order to demonstrate the mental state of the violator.

J.M. v. K.W., 2017 PA Super 167, 164 A.3d 1260, 1264 (Pa. Super. 2017) (en banc) “[A] mere showing of noncompliance with a court order, or even misconduct, is never sufficient alone to prove civil contempt.” Lachat v. Hinchliffe, 2001 PA Super 50, 769 A.2d 481, 488 (Pa. Super. 2001).

There are many different processes that result in a custody order.  The simplest is an agreement by the parties regarding the nature and time each parent spends with the children or child.  The other avenues typically include decisions by settlement masters, conciliators, arbitrators or judges depending on the rules for your jurisdiction.  One of the key questions is what to ask for in a custody order.

When considering the content of the order you should consider time, method of change of custody, travel, transportation, events and health requirements.  Obviously not all custody orders are going to be specific, but where the divorce and custody is heated and contentious, the more specific the custody order is, and the more delineated the responsibilities are, the easier it will be.  A more specific order cuts down on arguments and frustration.

Obviously the first issue is time spent with the child.  The Courts typically count an overnight stay as a “day” in custody in the order unless otherwise specified.  There are many different methodologies to achieve the amount of custody from week on week off, to a five / two arrangement or perhaps a weekend only arrangement.  Remember to ask the Court for what you want and what fits your realistic schedule.  It is important to have forethought in this determination because what is best for a three-year-old is not the same for a nine year old in terms of school, activities and overnights.  Consider the future ramifications.  It is wise to keep in mind that it is easier to have the children and quality time on the weekends when one is not overwhelmed by work.

The second issue is change of custody.  This can be a very significant and important issue that we dealt with in a previous post.  If your divorce was contentious or there is a PFA, custody changes can be a significant difficulty.  If there is a fear of bodily harm, it is best to make the exchange in a public place, such as a library, convenience store or shopping mall.   If not a drop off at the home may be possible.  It is important to choose a place and time that works.  I normally advise parents to make sure they pan for eventualities.  For example, the custodial change time on school or day care days can be at the end of the school day.  On non-school days or for very small children it could be determined to be at 5:00pm.  

This leads to transportation responsibilities.  Older school age children who have custody changes during the week typically can just take the bus or walk between parents.  However, on non-school days or with younger children who is responsible for driving.  Assign responsibility for transportation.  There is almost no issue that causes more disagreement than which parent is responsible for transporting the child from location to location.  Be specific about the when, where and who is responsible for driving, 

One of the other huge difficulties is travel and vacation.  The amount of vacation time should be allotted and there should be a sentence indicating that both parents allow the other parent to transport the child out of state or out of country during specifically mandated vacation times.  Moreover, the parties should be compelled to notify the other party months in advance about the specifics of the vacation.  What times, flights, hotels, locations, anything that makes both parents comfortable with the safety and security of the children.   Moreover, if the child has sporting events that potentially conflict with the vacation the importance of the sporting event needs to be discussed or prioritized in the order.  Some children are talented and highly advanced in their sports and may have travel team or championship games which are scheduled during the year and the right to take them to these locations for the sporting event should be agreed to and prioritized depending on the needs of the parties and the desire of the child.   Remember that wrestling, swimming, tournaments and other events can be very time consuming and expensive.  

Events also need to be planned for including school related, sports related, family related and religious events.  This includes holidays and holiday travel and plans to see family.  You should delineate this ability especially if a party has parents that live a significant distance away.  Typically, the parties switch off on holidays based upon even or odd years.  Obviously, the parties can agree on any arrangement they want, but remember to be specific about when the children need to appear for the holiday depending upon what your specific family values.   If the child needs to be at your house at 1:00pm to make the drive to the grandparents in time for dinner, you need to have that clarified.

Finally, it needs to be stated that both parents are responsible for taking the children to health provider appointments.  Where there is a primary parent or weighted legal custody, usually one parent makes the arrangements – but if therapy and doctors’ visits are needed on both parents’ time, it needs to be stated that the custodial parent must plan to have the child go to get the necessary treatment.  This can become very complex where psychological, developmental and physical diagnoses require steady treatment.  Again, be as specific as possible and clarify whose duty it is to transport the children to the appointments.

These are the most important parts of any custody order.  The take away here is that the order must plan for the eventualities which you may face during the vagaries of custody.  A bit of forethought can really save major headaches in the future. 

I wanted to briefly to touch on a change that was made in the Commonwealth of Pennsylvania divorce law which became effective in December of 2016. 

 Act 102 of 2016 (the Act) amended the Divorce Code by reducing the separation period required by § 3301(d) from two years to one year for parties separating after the Act’s effective date: December 5, 2016.   What this means is that the parties must be separated and living under this separation for more than one year.  Previously the parties had to be separated for two years.  Please note that “separation” is generally defined as living apart in a manner as though not married.  Act 102 provides that the one-year separation period is only applicable to married persons separating after the effective date of the Act – which means that the separation must begin after December 5, 2016.  Separations that have begun prior to the effective date don’t apply.  This means that only the separation which began prior to December 5, 2016 are counted as having been begun on December 5, 2016.  As noted, the current two-year separation period remains applicable to married persons that separated prior to the effective date of the Act.

Procedurally there is also a form change which must be used in such matters.  The current forms could not be amended merely by substituting one-year for two-year on the affidavit and counter-affidavit in Pa.R.C.P. No. 1920.72(d) and (e)(2), respectively. Instead, the current forms have been amended to delineate when the parties separated vis-‘a-vis the Act’s effective date. Therefore, a party alleging a date of separation prior to December 5, 2016, should proceed under a two-year separation period. A party alleging a date of separation on or after December 5, 2016 should proceed under a one-year separation period. Pa. R.C.P. No. 1920.72

 

 

 

 

Are you in a situation where you feel your parenting is judged?  Are you dealing with a spouse with primary custody that thinks they know everything about parenting?  They constantly criticize you and attack your decision making process regarding your parenting.  They think that they know it all and micromanage your choices and insist you are doing it all wrong.  You do not have to put up with such abuse – and it is abuse.  You can file to modify custody in your county. 

A.D. v. A.B., 2017 Pa. Super. Unpub. LEXIS 3690, *10-13 is just such a case.  The Court thought that it was paramount in its decision two major factors.  First the Court felt that one of the most important issues in making its determination was the safety and security of the child in question.  The Court looked at the child’s living circumstances.  The father lived in the same place for four years without moving.  The mother however moved at least five times that the Court was aware of.  The Court felt that the fact that the child was better served coming to the father’s same home with every visit. 

The Court, not surprisingly also felt that subsection 1, which states that the Court values which party is more likely to encourage and permit frequent and continuing contact between the child and another party – was also of importance in making its determination.  The Court felt that the father was most malleable and flexible in handling conflicts of schedule and other issues.  Moreover, the court agreed with the assessment of the custody evaluator, Dr. Rosenstein, as follows, in part.

“Mother acts in a “proprietary” manner toward and views herself as the “main and most important parent,” while her perspective is that Father is essentially the secondary parent and should follow her lead. Mother believes that having primary custody entitles her to have more say, even on smaller issues such as bedtime and diet which can realistically vary from one household to another.”

The custody evaluator felt that the mother could use some therapy for acting in the manner that she did. 

The bottom line here is that when a spouse moves around and provides no real stability to the child this is a custody factor that will weigh against the spouse that moves.  Second, when a parent is proprietary regarding a child and attempts to exclude the other parent, a Court will view this very dimly.  

You do not have to take your ex-spouse’s abuse in this situation. 

Relocation of a child is a tricky situation at best and is a move that is fraught with pitfalls.  The bottom line is that one of the common issues in divorce is the establishment and growth of a new relationship with a paramour from either the man or woman.  The parent desires to co-habitate with the new paramour and makes the decision that he or she wants to move to a different county or venue in the Commonwealth of Pennsylvania or some other location out of state.   This is not an unfair desire and frankly can arise from a truly wonderful relationship with the paramour not only being a fantastic boyfriend or girlfriend, husband or wife, but also a good and loving influence on the children. There is no judgement here on the reasoning of the parent to move but the reality is that if the other spouse decides that the move is not in the child’s interests, you are almost invariably in Court arguing the need and effect of the move on the children. 

The factors that a Court must use in determination as to the allowance of a relocation are as follows pursuant to statute23 Pa.C.S. § 5337 :

• (h)  Relocation factors. — In determining whether to grant a proposed relocation, the court shall consider the following factors, giving weighted consideration to those factors which affect the safety of the child:
  • (1)  The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
  • (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.
  • (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.
  • (4)  The child’s preference, taking into consideration the age and maturity of the child.
  • (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.
  • (6)  Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
  • (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.
  • (8)  The reasons and motivation of each party for seeking or opposing the relocation.
  • (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.
  • (10)  Any other factor affecting the best interest of the child.

• (i)  Burden of proof.
  • (1)  The party proposing the relocation has the burden of establishing that the relocation will serve the best interest of the child as shown under the factors set forth in subsection (h).
  • (2)  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.

Interestingly in B.A.Z. v. M.A.B., 2013 Pa. Super. Unpub. LEXIS 2020, the father, three days after the Court had issued a custody order making the father the primary parent, with partial custody residing in the mother, relocated the child without notification to a new school district.  Although this appeared on its face to be a violation of the statue, the Court ruled that since the move did not have an appreciable effect on the amount of time the mother could spend with the child, that it did not seem to “count” in the Court’s eyes as a relocation.  What this seems to indicate is that relocation can be defined as a movement far enough away from the other parent to affect the parent’s time with the child.  The trial Court noted that the father had not provided adequate notice but also noted that the Court had also held an emergency hearing at which time objections to the relocation were made and the mother’s rights to procedural due process were addressed.   So, the Court felt that although the letter of the law was violated the general spirit was observed. 

Being a single parent is rife with challenges.  These challenges are made more difficult when one has a child with special needs and not a surplus of money to pay for the assistance you may need.  This is applicable to both men and women.  There are resources to obtain help from the Commonwealth of Pennsylvania when child care is a necessity to go to a job, go to school or attend a training program. The amount and type of assistance is typically determined by income level, the cage of the child and the special needs if any, of your child. 

The Commonwealth of Pennsylvania offers pre-Kindergarten and head start programs.  Pre-K is free to eligible families. 

The website to obtain this information is:  https://www.compass.state.pa.us/Compass.Web/Public/CMPHome

Use this pdf to find help for your child / family in Philadelphia County:

http://www.health.pa.gov/My%20Health/Documents/Philadelphia%20County%20Resource%20Guide.pdf

 

 

When a parent gets divorced often they are so burnt out by the divorce process that another relationship is not even a consideration.  But over the long term, eventually most people get into relationships with other individuals.  The key issue to always remember is the effect of that relationship on the children.  A court will take evidence of the effect that these relationships have upon the children in any case involving modification of custody.  In fact when a non-parent develops a long term, close and loving relationship with a child, this can weigh strongly in the Court’s determination as to custody.  The mere fact that a parent has had or is having a non-marital relationship is insufficient to deny him custody of his children. Rather, the crucial determination is the effect of the non-marital relationship upon the children. Zimmerman v. Zimmerman, 11 Phila. 418, 420, 1984 Phila. Cty. Rptr. LEXIS 103, *1, 1984 WL 320924

Obviously, the same rules apply to a non-parent as a parent.  Stability, care, protection and love are important factors in the determination as to maintaining or changing custody rights.  The kinder and more involved the non-parent is, the more likely that the non-parent will have a significant effect on custody.

Therefore, when choosing a prospective partner, make sure that they are a good influence on the children.  It would seem logical to make observations regarding how the individual parents his or her own children – with the understanding that there are more than one correct method of parenting a child and further that different children need different types of parenting methods.