Author: bretrgoldstein@gmail.com

Venue can be an issue in child custody litigation, especially if the parents live in different jurisdictions.  Venue in non-legal terms is the determination of the location of what court will hear a case.  For instance, if one parent lives in New Jersey and the other in Pennsylvania the Court is often called on to decide which Court and which laws apply. 

Pursuant to § 5427 of the Uniform Child Custody Jurisdiction and Enforcement Act, a court that has jurisdiction of a child custody matter may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another county is a more appropriate forum. 23 Pa.C.S. § 5427(a). The statute provides the following, non-exhaustive list of factors a trial court should consider in making this determination: (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child, (2) the length of time the child has resided outside this Commonwealth, (3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction, (4) the relative financial circumstances of the parties, (5) any agreement of the parties as to which state should assume jurisdiction, (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child, (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence, and (8) the familiarity of the court of each state with the facts and issues in the pending litigation. 23 Pa.C.S. § 5427(b)(1)-(8).

 

In B.A.B. v. J.J.B., 2017 Pa. Super. LEXIS 468, *1, 2017 PA Super 199 (Pa. Super. Ct. June 26, 2017), the mother attempted to change the venue of a case from Lebanon County to York County, Pennsylvania.  The parents initially resided in Lebanon County and the mother moved to York County.  In B.A.B, the Court stated: “Father, who has always remained in Lebanon County, filed a complaint for custody in the Lebanon County Court of Common Pleas. The parties appeared before a custody conciliator, who issued a summary report in July of 2006. Following a de novo hearing, on October 6, 2006, the trial court entered an order granting Mother primary physical custody, Father partial custody, and the parties’ shared legal custody. Thereafter, in March 2009, and November 2011, Father filed two petitions for contempt, claiming Mother was interfering with his periods of partial custody. Both times, the trial court entered an order finding Mother in contempt.”  The father attempted to use physical force to keep his son in his car and the resulting fracas resulted in several Protection from Abuse orders.  The father likewise filed several petitions and the mother was held in contempt repeatedly. 

The mother filed a Petition to Change Venue to York County.  There were many hearings in front of the Lebanon County Judge and the Court noted this stating:

“The simple truth is that no jurist has as much background and knowledge about Mother and Father than does the undersigned. Moreover, it would simply not be possible for any jurist to gain the necessary insight without hours and hours of duplicative background testimony. We are unwilling to inflict this burden upon the York County Court of Common Pleas.”

The Court on examination of the evidence presented and the procedure followed felt that Jurisdiction should remain in Lebanon County.  Although there were other reasons why the Court felt that the jurisdiction should remain in Lebanon County.  However, the above paragraph is very powerful inasmuch as it indicates that the Judge’s familiarity with the fact situation is a very powerful lodestone to maintain jurisdiction.  I will take a very powerful reason to overcome such factors.

 

In M.P.B. v. K.J., 2016 Pa. Super. Unpub. LEXIS 4334, 2016 WL 6946577 (Pa. Super. Ct. Nov. 28, 2016) a Father appealed a Court’s judgement in granting the Mother primary physical custody with shorter periods of shared custody provided to the Father. The Mother was committed to a mental health facility and had an extensive history of mental illness with multiple hospitalizations. Moreover, the Mother was on total psychiatric disability since 1993 and she has residual cognitive defects from a traumatic brain injury that she sustained in 1999.  Based upon the latest hospitalization, Father filed a petition for emergency custody, which the Court granted, awarding him sole legal custody and primary physical custody of D.B. The order did not carve any specific periods of partial custody for Mother, but it permitted her to visit D.B. upon her release from the facility, so long as Father agreed. When the Mother got out of the facility, the Father limited Mother’s access to the child. As a result, she petitioned the trial court for modification of the emergency custody order. The trial court ordered Mother to undergo a mental health evaluation, and upon review of the evaluator’s findings, it reinstated the April 2009 custody arrangement making the Mother the primary custodian with a modification that enlarged Father’s periods of alternating weekend custody. Father sought reconsideration, which led to a series of countervailing petitions that ultimately culminated in the two-day custody trial that is the genesis of this appeal.

Father frames his assertions in four prolix questions, which we condense into two succinct issues: (1) whether the trial court’s best-interest analysis is contrary to the statutory directive to give weighted consideration to factors that affect the safety of the child; and (2) whether the trial court erred in weighing the second, seventh, fifteenth, and sixteenth custody factors pursuant to 23 Pa.C.S. § 5328(a). Father’s brief at 7-8.

In M.J.M. v. M.L.G., 2013 PA Super 40, 63 A.3d 331 (Pa.Super. 2013), we reiterated the applicable scope and standard of review as follows:

“In reviewing a custody order, our scope is of the broadest type and our standard is abuse of discretion. We     must accept findings of the trial court that are supported by competent evidence of record, as our role does not include making independent factual determinations. In addition, with regard to issues of credibility and weight of the evidence, we must defer to the presiding trial judge who viewed and assessed the witnesses first-hand. However, we are not bound by the trial court’s deductions or inferences from its factual findings. Ultimately, the test is whether the trial court’s conclusions are unreasonable as shown by the evidence of record. We may reject the conclusions of the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.”

With any child custody case, the paramount concern is the best interests of the child. This standard requires a case-by-case assessment of all the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child. J.R.M. v. J.E.A., 2011 PA Super 263, 33 A.3d 647, 650 (Pa.Super. 2011)

, the Father felt the Mother’s past mental issue history constituted a danger to the child and felt that given this situation, the custody factors affected by the Mother’s condition should be more heavily weighted in the Court’s determination than the other factors. The Father felt that consideration of the factors should be weighted in favor of the factors affecting safety of the child. The appellate Court disagreed.  Their reasoning fell on what they felt was an exaggerated assumption as to the safety concerns for the child.  They noted that where there were issues involving safety, the Mother acted quickly to resolve those issues in favor of the child.  Regarding the mental illness issues, a combination of two factors resolved the issue in the favor of the Mother.  First a Court ordered psychiatrist examined the Mother and cleared her.  Second, the Mother acted to obtain care for her conditions.

The take away here is that Courts seem to weigh all the custody factors in making a determination and that each case revolves around its own facts.  Moreover, an important conclusion is that for safety to be an issue, it must be based upon a clear and present danger and that past propensity has less power to control than current issues.  Track record is not determinative. 

In J.R.M v. J.E.A. 33 A.3d 647, 2011 Pa. Super. LEXIS 4297, a Court initially granted a mother custody and limited the father’s custody for the apparent reason that the child was breast feeding with the mother.   The father appealed the restrictions on his custody imposed by the Court. 

Generally, if a Court finds that there is an ongoing risk of harm to the child or an abused party and awards any form of custody to a party who committed the abuse or who has a household member who committed the abuse, the Court shall include in the custody order safety conditions designed to protect the child or the abused party.  However, in this case there did not appear to be any testimony or evidence which would have led to the imposition of restrictions on the father.

The record reflects that the trial Court imposed restrictions on Father’s periods of partial custody. First, the trial Court ordered that “Mother or any other suitable care giver [sic]” may be present in the area where Father is visiting with Child. Although the fact that Mother is breastfeeding Child may have served as support for ordering that Mother is to be present in the area during visits, there is no indication in the record or in the trial Court’s findings of fact as to why another “suitable” caregiver would need to be present while Father visits with Child.  The trial Court made no finding that Father was unfit or unable to care for Child on his own, or that he posed any sort of threat to Child if left entirely unattended. 

The trial Court further disallowed Father from having visits with Child in his home or having overnight visitation with Child, indicating that it was a “long term goal” for Father to be able achieve such visitation in the future, “when the child is of the appropriate age.”

The trial Court made no finding that visitation in Father’s home would be detrimental to Child, that Father’s home was not equipped to have Child visit during the day or for overnight visitation, or that Father or his fiancé posed a threat to Child. Indeed, Father testified that he has a room furnished and set up for Child, and presented pictorial evidence to the trial Court. The record further reflects that Father’s fiancé has attended Father’s visits with Child, and there were no concerns expressed about her interaction with Child. Moreover, while Mother testified that it would be a hardship for her to make the two-hour drive to Father’s house with Child while Child is still breastfeeding every two-to-three hours, there is no evidence of record that supports a finding that Child could not travel such a distance once he is weaned.  It appears from the record that the fact that the mother was breastfeeding the infant child and that the Court weighted this factor in its determination.

On appeal, the father argued that the trial Court erred in awarding primary physical custody to the mother without engaging in a fact-specific, case-specific analysis of the best interest factors. The appellate Court agreed with the father that the trial Court erred by failing to consider the factors required under 23 Pa.C.S. § 5328(a), in rendering a custody decision, noting that the trial Court based its decision almost exclusively on the fact that the child was breastfeeding and the parties’ difficulty communicating with each other. The appellate Court also agreed that the trial Court erred in imposing restrictions without justification.

The Superior Court indicated that because the lower Court did not discuss the reasons that it limited the father’s custody that the case be remanded back to the lower Court for further findings as to custody. 

In summary, because the trial Court failed to account for the required factors in reaching its custody determination, the Court reversed the decision of the trial Court and remanded the case for the consideration of said factors and for further findings of fact.  In the absence of a determination that the Child would suffer a detrimental impact by having unsupervised visits with the noncustodial parent, the trial Court shall enter an order granting unsupervised periods of partial custody for the noncustodial parent.  

It is hard to come to completely guiding conclusions regarding this case.  The record is not entirely clear what the basis was for the Court’s limited custody decision regarding the father.  However, the Court repeatedly noted that the mother was breast feeding the infant and this seemed to signal that this was an important factor in its limitation of custody of the father – so that the breast feeding would continue without interruption by the father’s custody periods.   Either way, clearly the fact that a mother is breast feeding is not a sole basis for not having some form of shared custody of an infant child. 

 

A child’s preference in custody decisions is important in the Court’s determinations, but it is not controlling.  As the ultimate arbiter of fact, the trial court is best suited to determine the weight to be given to the children’s preferences. Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575, 583 (Pa.Super. 1995). The significance of the preferences vary with age, maturity and intelligence together with the reasons given. Wheeler v. Mazur, 2002 PA Super 46, 793 A.2d 929 (Pa.Super. 2002).

A.N. v. C.M., 2017 Pa. Super. Unpub. LEXIS 2281 an unpublished 2017 case, is a good example of how a Court interprets and weighs the evidence provided by children’s testimony.   In A.N. the mother and father shared physical custody with the mother having primary custody.  The mother lived out of state and the children travelled for periods to the father’s home – but the majority of the time resided with the mother.   Apparently, the older child did not like being with the mother because of her work schedule amongst other articulable reasons.  He explained this to the Court and interestingly the Court in its Decision referred to how well reasoned the child’s preference for the father was.  The younger child was more ambivalent and liked being with both parents.

The father filed a petition to challenge custody to get more custody time with the children.  During en camera discussions / testimony with the Judge, the older child indicated that the mother’s work schedule took her out of the home and prevented the child from getting access to various opportunities to play sports, socialize, etc.  The child was eloquent and stated the following:

“[The child] feels overburdened by her household responsibilities while Mother and Stepfather were at work, including caring for her sister and the family’s pets. She summarized her position as follows, “I feel like it would be neat to have a parent in the area . . . because without a parent it’s really just me raising my little sister and I don’t want to do that. I mean, I already wasted a lot of my childhood doing that.”

There was also an incident where the children were left alone at home for the night due to the mother’s work schedule.  This ended up involving the police, although no charges were filed.

Subsequent to the father’s filing of the Petition, the mother changed her work schedule to something more cognizant of the children’s needs.  Because of the change and despite the negative testimony of the older child, who clearly preferred being with the father, the Court ruled that the custody schedule would remain the same.   The Court’s reasoning was that the older child’s primary reason for a change of custody was removed with the mother’s change of work schedule.  Moreover, the younger child’s ambivalence to the change was also a factor in the Court’s determination.

What makes this case interesting is that the Court ruled against what it regarded as the well-reasoned opinion of the older child and gave greater weight to the mother’s change of schedule eliminating the older child’s major problem.   The take away here is that the Court can make determinations that value the underlying reason for a child’s perceptions and desires for custody rather than their short-term desires for a custody change.

 

 

§ 3502 sets forth the factors which comprise the evidence that a Court may consider in determining the division of property during the divorce process.  The Court makes the decision regarding the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets.

(1)  The length of the marriage.

(2)  Any prior marriage of either party.

(3)  The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

(4)  The contribution by one party to the education, training or increased earning power of the other party.

(5)  The opportunity of each party for future acquisitions of capital assets and income.

(6)  The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

(7)  The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

(8)  The value of the property set apart to each party.

(9)  The standard of living of the parties established during the marriage.

(10)  The economic circumstances of each party at the time the division of property is to become effective.

(10.1) The Federal, State and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

(11)  Whether the party will be serving as the custodian of any dependent minor children.

It is important to note that all the cases that deal with the division of assets are very fact determinative.   This means that Courts use the facts of every case to apply the law and that the kind of outcome in one case may not result in the same result in a different litigation.  However, as an overarching theory that the Courts seem to apply in every case is the concept of economic justice and equity in property division. 

K.R.W. v. J.R.R., 2017 Pa. Super. Unpub. LEXIS 1293, is illustrative of how a Court will review testimony regarding custody of children.  In K.R.W., we have a very good example of the Court’s thought process regarding custody.  The case involved a father who felt that the mother of the children was a drug addict who could not adequately care for her children.  You will see from the following testimony that the drug habit was not the most important lodestone in the Court’s determination. 

The Court stated:” On this factor we come down strongly on the side of [Mother]. The proceedings in this court began with a petition for emergency relief filed by [Mother] because [Father] was refusing to allow [Mother] to take the younger child of the parties, [E.J.R.], because he contended that she was not able to care for the [C]children. His position all along has been that [Mother] is a drug addict and is not safe with the [C]children. The court’s finding is that [Mother] has appropriately addressed her drug issues and at the hearing in late 2014 we received testimony from Dr. Kahler that we considered credible and controlling. We do conclude [Mother] has not used illegal drugs since before she admitted herself to drug rehab in 2013. Dr. Kahler confirms that [Mother] has been screened clean during her frequent visits to his office. [Mother] has demonstrated more respect for [Father’s] parenting skills than [Father] has demonstrated towards [Mother]. [Mother] has offered frequently to expand [Father’s] time with the children. Significantly when [Mother] was hospitalized, she suggested that [Father] should take the [C]children and it took him two (2) days to pick up the [C]children. Since the late 2014 hearing and adduced in the testimony in the more recent hearings in 2016, [Father] seems more supportive of [Mother’s] efforts to parent and has stated that the two of them, when they communicate between themselves, communicate well. He said it is only when they get close to litigation or close to court dates that she seems to become unwilling to communicate. Hopefully, the conclusion of the proceedings will allow both parties to be more open with each other.”

The Court noted that the mother supported the children’s relationship with the father and was happy to provide him with further custody.  Important here is the Court’s perception of how the father and mother relate to each other and support each other’s parenting decisions.  The Court also stated:

 [t]he [C]children are both always glad to see [Father] at the start of his custody time. There was testimony the [Children] are not always glad to see [Mother] at the start of her custody time. The paternal grandmother, [D.R.], and [Father] testified that at times [E.R.R.] does not want to go with [Mother]. So much so that she has had to chase [E.R.R.] throughout the house as [E.R.R.] hides. This testimony was contradicted by [Mother] and we accept [Mother’s] version as credible, that [D.R.] has been seen by [Mother] hugging [E.R.R.] at the time of the exchange and consoling her [by] saying words to the effect, “I don’t want you to go, but you have to go.” We find that conduct is debilitative of [E.R.R.’s] relationship with [Mother] and certainly inflames the exchange. Both parents should be promoting the bond with the other parent. In this case having the paternal grandmother telling [E.R.R.] she would not have to leave but for the court order or [Mother] … is doing damage and is wrong. We accept [Mother’s] testimony on that point.”

The Court also notes the behavior of the maternal grandmother and again takes note of the parents and grandparents behavior.  Clearly the Court focuses again on the caretakers supporting each other’s parenting decisions and methods.  Antagonistic or inciting behavior is also noted by the Court.  The Court also stated:

“Finally, the court found significant the fact that Father had turned down repeated offers by Mother of increased periods of custody, stating that “this shows [Mother] is willing to keep [Father] fully engaged and is liberal in terms of allowing him extra time with the [C]children,” while Father “is, for whatever reason, unwilling to take advantage of any time he could possibly have with the [C]children.”

Mother testified that she wants the Children to have a good relationship with Father, encourages them to talk with Father on the telephone during her periods of custody, and actively attempts to make custody transitions cooperative for the sake of the Children.  Mother indicated that, although Father has expressed interest in attending various events for the Children, including parent-teacher conferences, he will not appear at those events, despite having ample notice of the date, time, and location.  She indicated that she initiates contact with Father regarding the Children, usually via text message, and that their level of communication had improved between the April 22, 2016 and May 26, 2016 custody hearings.

The takeaways here are many.  First, you can have a problem with addiction and/ or the law, and if you take care of the situation, it will not affect the custody of your children.  Second, the way you behave toward your ex-spouse is very important.  The more you demonstrate respect and kindness, the better off you will be in the eyes of the Court.  The party that is perceived to be less reasonable is the party that the Court will not favor.  The more reasonable you seem, the better your chances in front of a Judge.  Third, do not attempt to alienate the affections of the other spouse.  This also does not play well in front of a Court.  The bottom line here appears to be that demonstrating respect for the parenting of the ex-spouse is a winning formula.

You must make your best good faith attempt to follow all Court Orders regarding custody.  However, note that if you are found in contempt of an Order, simply being in contempt of Court is not enough alone to change custody.  An adjudication of contempt is not a proper basis to modify an existing custody arrangement. A parent’s violation of a custody order may be an appropriate foundation for a finding of contempt, but it cannot be the basis for an award of custody. A trial court’s ability to alter custody as a contempt sanction is restricted to circumstances where the responding party is given express notice that custody will be at issue during the contempt proceeding and the modification is based upon the determination of the child’s best interest. J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017)

A trial court may transfer physical custody after a contempt hearing only when the modification suits the child’s best interest considering the statutory factors and the respondent has been given particular notice of that objective. The reason for the notice requirements is more than a procedural formality. Indeed, without particularized notice that custody would also be at issue at the contempt hearing, a respondent would not be prepared to litigate the custody dispute during the contempt proceedings and the trial court would be denied the benefit of both parties’ relevant evidence concerning the children’s well-being. Consequently, the trial court would lack the required information to make the quintessentially crucial judgment as to the children’s best interests. J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017)  The issue here is that there must be an award of special relief by the Court.

Absent an award of special relief under Pa.R.C.P. No. 1915.13, it is an abuse of discretion for the trial court to transfer custody from one party to the other as a contempt sanction; custody can be modified only where the parties receive advance notice that custody is to be an issue at the contempt hearing and modification is based upon the determination of the child’s best interest.  J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017)

There are two takeaways here.  First, it is always bad to violate a custody order.  No good things come from that decision.  The second important take away is that a Court can not simply order a custody change based upon a violation.  However, note that a Court does have the power on its own to change custody upon a hearing.  The Court will have to provide notice if this is to occur which may give you time to comprise a strategy based upon the best interests of the child to fight any proposed custody change. 

There may come a time when you may need to relocate because of a job a change in love life, a move nearer to a support system or some other reason.  Under Section 5337 (23 Pa.C.S. § 5337) of the Pennsylvania Child Custody Law a party wishing to relocate must provide notice prior to moving, to which any party entitled to receive notice may file objections.   As a practical matter this means that the other parent in custody can file objections to the relocation and obtain a hearing before the Court

However, before a Court may approve a proposed relocation several things must occur.  First, the party proposing relocation shall notify every other individual who has custody of the child, and inform them of the particulars of the proposed move. § 5337(c) (1)-(4).  Next, if a non-relocating party files an objection to the proposed relocation, the trial court is required to hold the aforementioned hearing in which the party proposing relocation has the burden of proving that the move would serve the child’s best interest considering the factors set forth in § 5337(h) (1)-(10). § 5337(d), (g), (h) and (i). Absent exigent circumstances that warrant relocation prior to the evidentiary hearing, the trial court will not approve the move until a full consideration of all the relevant statutory factors addressed during the hearing. § 5337(g).  The bottom line here is that it is a mistake to just move without obtaining Court approval first.

In J.M. v. K.W., 2017 Pa. Super. LEXIS 390, *1-2, 2017 WL 2351519 (Pa. Super. Ct. May 31, 2017) the children’s mother at issue, filed a counterclaim to the custody complaint and issued notice of her proposed relocation with the children from her residence in Pottsville, Schuylkill County, to Lancaster, Lancaster County, approximately one-and-one-half hours away. Father filed a counter-affidavit objecting to Mother’s proposed relocation. However, (and here is the important part) prior to obtaining the trial court’s authorization under § 5337, Mother relocated with the children to Lancaster during May 2015, and she purchased property in that county two months later.

Father responded to the move by filing a petition for special relief and contempt.  During the contempt hearing, Father established that Mother had relocated to Lancaster without prior court approval and enrolled one of the children in a Lancaster-area preschool without Father’s knowledge or consent. The trial court entered the above-referenced order that found Mother in contempt, and, as a sanction, reduced her custodial rights from primary physical custody of the children to shared custody. The order was to remain in effect until the underlying custody dispute was resolved. The trial court also awarded Father attorney fees.

The mother appealed and the Court upheld the finding of contempt but it did not uphold the change in custody awarded by the Court.

The take away here is that the mother essentially got lucky here not having the Court take custody from her.  Please note that the Court can permissibly change custody – but made the custody award a change as punishment for contempt other than based upon a motion for special relief – which would have allowed the change.  As a sanction however, a custody change is impermissible.

 

Although the express wishes of a child are not controlling in custody decisions, they do constitute an important factor that must be carefully considered in determining the child’s best interest. In assessing the weight to be accorded the child’s preference, his or her intelligence and maturity is to be considered with increased weight being accorded the child’s preference as he or she grows older. The weight accorded such preferences is to be determined by a trial court. Where no reason or a very inadequate reason for the preference is proffered, a court gives no weight thereto. Moreover, when a child is particularly young, his or her expressed preference is often not the mature and intelligent decision that would sway a court. It is also true that a child’s stated preference may be sufficient to support a conclusion that a change of custody is warranted. Zimmerman v. Zimmerman, 11 Phila. 418, 420, 1984 Phila. Cty. Rptr. LEXIS 103, *1, 1984 WL 320924 (Pa. C.P. 1984)

The takeaway from this is that the older your child is, the more weight will be given to their desires about which parent should be given custody.  However, the actual nature of their testimony is extremely important.  They should be able to present clear, cogent, well-reasoned explanations for their opinions in order to provide the best and most weighty, effective arguments.

 

Contingent interests are, well, interesting in terms of whether they are considered martial property for the purposes of equitable division of assets in a divorce.  A contingent interest can be a trust or bequest of some type from a relative.

If an interest is so contingent that it is a mere expectancy, then no aspect of it can be included as marital property.  What this means is that if the asset is something that someone expects to get versus something someone absolutely will get then it is not a marital asset.  The test in determining if an interest is vested or contingent, is not the certainty or uncertainty of obtaining actual possession, nor the defeasibility or indefeasibility of the right of possession, inasmuch as estates may be vested in interest though without present right of possession. So long as a present right exists to a future possession the estate is vested, even though actual possession may be defeated by a future event. McGinley v. McGinley, 388 Pa. Super. 500; 565 A.2d 1220 ** | 1989 Pa. Super. LEXIS 3331 ***

The take away here is that the general rule is that if you have a legal right to get something that can not be infringed, it is a marital asset.  Now, just to be one hundred percent clear, some legal or factual event may occur which potentially defeats the right – however, if the right exists then the asset is marital.