Tuesday, September 01, 2015

Must the School District provide school bus transportation from both Mom AND Dad's house in a split custody situation?

The Pennsylvania Supreme Court answers: Yes, in narrow circumstances.
Image result for yellow school bus images

In the case of Watts v. Manheim Township School District, the parents shared equal custody of their son on a week on/week off basis.  Both parents lived in the same School District.  The District originally provided a bus stop at Dad's house on his weeks and a bus stop at Mom's house on her weeks.  Because the parents shared custody, the child had two legal residences.

The School District went through some financial cutbacks, eliminating some bus routes altogether (so those students had to walk to school) and ending the practice of different bus stops depending on custody arrangements.  Dad then had to drive his son to Mom's bus stop during his custody weeks, as Mom's address was listed on the school forms.  Dad protested and eventually sued.  The case wound its way to the Pennsylvania Supreme Court who sided with Dad.

Notably, the decision here is limited to the facts of this particular case.  Mom and Dad lived very close together, in the same School District.  They alternate custody each week so one week, the child is at one bus stop, and the next week he is at another bus stop.  The decision here would not apply to other circumstances.

If you divide custody time, check into the policies of your school district before agreeing on a custody arrangement.  For the child's sake, it may be better to simply drive him or her to the one bus stop - for consistency.  How your child will get to school should be an important consideration when negotiating any custody arrangement.

Monday, August 10, 2015

Expungement Law in New Jersey

The New Jersey Supreme Court just issued an opinion interpreting the law on expungement of crimes in the Garden State.  Read the opinion here:  In the Matter of the Expungement Petition of J.S.

Friday, July 17, 2015

Don’t Count Your Chickens: Why Mediation Agreements May Not Be Binding

In the state of New Jersey, the Court can order parties to attend mediation any time after the filing of the Divorce Complaint. Mediation is an opportunity for the parties to “talk it out” with the help of a neutral third party. Mediators cannot make binding decisions, but they can broker an agreement between the parties. If an agreement is reached, it can be reduced to writing, signed by both parties, and, in some cases, entered with the Court.

Signed mediation agreements are enforceable in the same manner as any other written agreement between the parties. However, in many cases, at least one of the required steps does not occur. Often, the parties are unable to reach an agreement, even with the help of the mediator. In some cases, the agreement is reduced to writing, but is not signed by the parties. In this situation, the non-consenting party may be able to back out of the agreement.

Unsigned agreements resulting from mediation are usually not enforceable. A New Jersey statute attaches a “privilege” to mediation discussions, which means one party cannot disclose what happened at mediation without the other party’s consent. Because of the mediation privilege, the party seeking enforcement cannot disclose the content or circumstances of the mediation agreement in litigation.

Mediation privilege can be waived by the parties. Generally, if one party introduces privileged information, and the other party does not object, the privilege is waived. A party usually cannot object to a violation of the mediation privilege if that party has also introduced privileged information.

A recent unreported Appellate Court decision, Campbell v. Campbell, A-3113-13T2 (Decided July 2, 2015) allowed the enforcement of an unsigned mediation agreement where the parties had reached an agreement at mediation but opted to show the agreement to their lawyers before signing. One party then contested many material terms of the agreement. The other party requested that the terms of the mediation agreement be incorporated into the divorce decree.

The Appellate Court upheld the trial court’s decision to incorporate the terms of the mediation agreement because the parties had waived the mediation privilege through their actions and the terms of the agreement were clearly established before the Trial Court. The Appellate Court also placed emphasis on the fact that the parties had informed the Court at the time of the mediation agreement that the case had been settled.

Litigants should be aware that a subsequent Supreme Court Decision essentially renders this case irrelevant. In Willingboro Mall v. Franklin, 71 A.3d 888 (2013), the New Jersey Supreme Court explicitly stated that “going forward, parties that intend to enforce a settlement reached at mediation must execute a signed written agreement.” The Court only allowed enforcement of the mediation agreement because the agreement in Campbell was made in December of 2012, several months before Willingboro was decided, even though the Campbell appeal didn’t reach the Appellate Division until long after Willingboro.

Mediation can help some parties reach an agreement and minimize litigation costs, but litigants should be aware that unsigned mediation agreements are not enforceable. If a mediation agreement is reached, be sure to sign the agreement - and have the other party sign- before leaving the mediation session. Otherwise, you will be back where you started, but with added mediation costs and the continued burden of litigation.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, July 15, 2015

Child Support Modification: Does it really pay off?

In the State of New Jersey, children are presumed to be emancipated when they reach the age of eighteen. When a child turns eighteen, an obligated parent can petition the Court for a modification of child support, to reflect the fact that the parent believes a child should no longer receive support. Litigants beware: circumstances may rebut a presumption of emancipation, and filing for modification of child support could even do more harm than good.

The presumption that a child is emancipated upon his or her eighteenth birthday can be rebutted by showing that the “fundamental dependent relationship between parent and child” has not yet ended. Dolce v. Dolce 383 N.J. Super. 11 (App. Div. 2006). This may happen if the child still resides with the primary custodial parent, or the child depends on the parents for continuing financial support while attending college. Please note that the New Jersey law differs from the Pennsylvania law on this issue, so make sure you know your jurisdiction.

In a recent unreported decision, Cosco v. Cosco, Appellate Division, A-2709-13T1 (Decided July 2, 2015), the Trial Court found that neither of the parties’ children were emancipated where one was over eighteen and attending college, and one had just turned eighteen and was a high school senior. The Appellate Court affirmed this decision.

While this is a non-precedential decision and is not binding on lower courts to follow, these types of decisions provide some insight into the way Courts might analyze this issues. Before filing for modification of child support on your child’s eighteenth birthday, consider all the facts and circumstances. You may save yourself significant frustration and litigation costs by analyzing your case and making sure both the facts and law are on your side.

The Plaintiff in Cosco also harmed his case by failing to enclose complete financial information. The Plaintiff owned a lawn care business, and enclosed two partial tax returns, but did not complete the income section of his Case Information statement, which is required with all custody petitions. During the case, the Plaintiff alleged that his decreased income and increased family obligations (two other children with his new Wife) should warrant, at the least, a lower child support award. However, because the Plaintiff was not completely forthright about his income, the Court could not determine whether his income had changed enough to warrant a lower child support obligation.

To make a bad situation worse, the Court further ordered the Plaintiff to pay the Defendant’s attorney’s fees because the Court found Defendant’s Petition to Modify to be in bad faith, due to his failure to file complete financial information.

The message to litigants is this: that petition to modify child support may be more costly than you think. Consider the circumstances surrounding your children before you assert that one of them is emancipated. Then be sure to attach complete financial information to your petition and do not try to conceal your income from the Court. This kind of litigation can be more expensive than a few more months of child support. Additionally, in cases with two or more children, emancipating one child does not mean you will cut your child support in half. Rather, the Court will calculate a new support award based on the current income/earning capacities of the parents and the Child Support Guidelines.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, July 08, 2015

Texting Wars: Frustration or Domestic Violence?

Warning: couples tend to engage in texting “wars.” Separation, especially when coupled with divorce or custody litigation, often brings out the worst in people, and it is normal to become angry or frustrated with the other party. Your choice words, preserved in a text, may come back to haunt you.

Some states, including New Jersey, have passed anti-harassment laws, which are aimed at preventing non-physical acts of domestic violence. Generally, the grant of a Protection from Abuse order (PA) or a Final Restraining Order (NJ) requires proof of physical danger posed by the party against whom the order is sought. In the past, it was nearly impossible to get a Protection from Abuse Order or a Final Restraining Order without evidence of physical violence or threat of physical violence.

The New Jersey harassment laws allow the grant of a Final Restraining Order where it is proved that the Defendant committed a particular act with intent to harass the Plaintiff. These acts include communication that “occurs at extremely inconvenient hours,” with “offensively course language,” or “in any manner likely to cause annoyance or alarm.” The statute also includes a more classic provision for “striking, kicking, shoving, or other offensive touching” and a blanket provision for “any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy another person.” N.J.S.A. 2C: 33-4.

Litigants seeking to obtain a Final Restraining Order under this statute should keep in mind that they must prove not only one of the acts listed in the statute, but also that the act was performed with the intent to harass.

Litigants should be aware of this intent requirement because proving intent is a tricky thing. What were you actually thinking when you sent those angry texts to your ex? No doubt you were angry and frustrated. But were you trying to annoy or alarm the other person? Maybe you were. Maybe you were not. Ultimately, the Court cannot get inside your head, but must reach a decision anyway, using the surrounding circumstances to ascertain intent. While the statute is supposed to distinguish between “ordinary disputes and disagreements between persons in a past or current domestic relationship and those acts that cross the line into domestic violence,” the result reached by the Court does not always reflect the Defendant’s view of the situation.

One such incident occurred in the recently released New Jersey decision, S.P. v. W.P., Docket No. A-4888-13T4, decided June 9, 2015. In S.P. v. W.P., the Wife filed for a Restraining Order against her Husband under the New Jersey harassment statute after he sent her a series of angry text messages following their separation.

One evening, the Husband returned home to find that the Wife had left, changed the locks on the house, taken the children with her, and deposited Husband’s belongings outside the house. Husband was, understandably, furious. He proceeded to send Wife a series of text messages, laden with expletives, threatening to cut off her financial support and demanding to see the children.

Wife filed a Temporary Restraining Order against Husband under the harassment statute. At the hearing, the Trial Court initially found that Husband’s text messages were not intended to harass Wife. Rather, they were motivated by Husband’s concern for his children.

However, in an error of procedure, the Trial Court allowed Wife’s counsel to essentially argue a motion for reconsideration before reaching a final decision. Wife’s counsel then brought up a domestic violence incident that occurred ten years prior, and testified that Husband was an alcoholic and she was afraid of him. At the end of the hearing, the Trial Court granted Wife’s Final Restraining Order.

While the Appellate Court eventually overturned the Trial Court’s ruling due to numerous evidentiary and procedural issues, Husband was likely prevented from seeing his children during the course of the litigation, and no doubt incurred significant legal fees.

It is very common in divorce litigation for separating spouses to unleash angry accusations against each other. Some couples even fabricate complaints, in an effort to gain an edge in litigation. Domestic Violence is a serious issue, and legislatures have tried to address it by making it easier for abused parties to obtain restraining orders. Unfortunately, this opens the door for abuse of the statute as well. You can protect yourself from some of these accusations by controlling your own behavior. Civility, even when you are angry and frustrated, can go a long way toward bolstering your own case, and protecting your own interests.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Monday, July 06, 2015

Support Deviation Factors Explained: Other Household Income

Under Pennsylvania Law, child support and alimony pendente lite/spousal support awards are determined by a statutory formula. Using each party’s income or earning capacity, along with other relevant factors (such as number of children and number of custody days) the child support guidelines determine the support award.

There is a presumption that the amount determined by the formula is correct. However, utilizing incorrect data will result in an incorrect support number. Sometimes the Court incorrectly determines a party’s income, usually when the party is self-employed, or when the party is not presently working but has the ability to work. Sometimes the formula is just not designed to account for the extraneous circumstances that can affect the parties’ actual financial situation.

In Pennsylvania, “deviation factors” are written into the statute to account for these situations. Pennsylvania Rule of Civil Procedure 1910.16-(b) explicitly lists nine “deviation factors,” or special circumstances, that allow the Court to modify the formula amount to more accurately reflect the parties’ financial situation.

Perhaps the most misunderstood deviation factor is the one that allows for consideration of “other household income.” Under this factor, the payor may argue that someone in the recipient’s household earns so much income that the recipient does not need support, and may therefore deserve a lower support award. Alternatively, the recipient may argue that someone in the payor’s household earns so much money that the payor does not need his income to support himself, and therefore more income is available to pay a higher support award.

The “other household income” factor is often argued but rarely successful. The Court only deviates on this factor where there is a significant difference in income created by the other members of the household. Litigants often do not understand the definition of a “significant difference” in this context. One example of a successful deviation argument can be found in the recent Superior Court decision J.P.D. v. W.E.D., 2015 Pa. Super 108.

In J.P.D. v. W.E.D., the Husband and Wife both earned about $45,000 per year. Wife had primary custody of the children, and Husband paid child support to Wife. However, Husband had recently re-married to a woman who earned approximately $1 million each year. At the hearing, Husband testified that he did not contribute to any of the household expenses. Husband further testified that he did not even know what the household expenses were because his new Wife handled all of the finances.

In this case, the Court allowed an upward deviation of child support against Husband because it found that Husband’s ability to pay was significantly more than accounted for in the statutory formula. The formula anticipates that both parties will need to use a significant amount of their income for self-support. The Court found that simply wasn’t true for the Husband in this case.

Upward deviations on account of “other household income” generally are not exercised unless there is a very large gap between the party’s yearly income and the total household income. Even when there is significant income disparity, the Court can only deviate where evidence is presented to prove the disparity at the hearing.

In the case of J.P.D. v. W.E.D., Husband’s testimony that he did not contribute to household expenses and did not even know what they were was sufficient to prove that all of Husband’s income was available for an increased support award. If evidence had not been presented on this topic, the Court could not have considered deviating from the guidelines, no matter how much additional income Husband’s new Wife contributed.

If you decide to argue a deviation factor in a support hearing, always remember that you have to prove the circumstances of that factor. You must provide sufficient evidence in the form of documents and testimony, or the Court cannot even consider deviating. Additionally, the difference in income available in the household must be extreme, as it was in this case. Generally speaking, Courts tend to exhibit reluctance in applying any deviation factor and the presumption that the support guideline number is correct remains strong.

Saturday, July 04, 2015

Happy Birthday America!

Happy Birthday to the United States of America!

Friday, June 12, 2015

Social Media Rants: Could Venting Your Frustration Land You In Prison?

Domestic Relations litigation stirs up a lot of feelings: stress, anger, and frustration are among them. Under the pressure of a bitter divorce or contested custody matter, parties may feel the need to vent. The prevalence of social media makes it even easier to publicly “say” something you will regret. Venting your feelings on social media is almost never good for your divorce or custody litigation, and most lawyers remind their clients to be careful about their social media presence during litigation. However, few people realize that extreme social media rants may have serious, even criminal, consequences.

The law surrounding social media is still developing. Parties should be aware of the federal statute 18 U.S.C. §875(c), which makes it a crime to “transmit in interstate commerce” (ie: via the internet) “any communication containing any threat...to injure the person of another.” The United States Supreme Court recently tried to clarify the meaning of this law in the case Elonis v. United States, (published June 1, 2015).

In Elonis, an angry Husband posted imitation “rap lyrics” to his Facebook page following his separation with his wife. The “lyrics” explicitly described how someone might best try to kill his wife: by firing a mortar launcher at her house from an adjoining field and escaping on an access road. Further “lyrics” included phrases such as “Fold up your [protection-from-abuse order] and put it in your pocket, is it thick enough to stop a bullet?” and “If worse comes to worse, I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”

Elonis interspersed the “lyrics” with notes that they were not intended to be about real people, and that he was exercising his first amendment rights. Elonis later argued that his “lyrics” were meant to imitate those of rappers such as Eminem, whose lyrics describe his fantasies about killing his ex-wife. Elonis was indicted under 18 U.S.C. §875(c).

The main issue in Elonis was the level of culpability Elonis needed to be found guilty. The statute criminalizing threats did not specify the intent necessary. The majority of the U.S. Appellate Courts had held that a standard of “negligence” was necessary to convict Elonis. Use of the “negligence” standard means that Elonis would be guilty if he “should [have] be[en] aware of the substantial and unjustifiable risk” that his posts would be interpreted as true threats to harm others. The Supreme Court, however, ruled that “negligence” was not enough.

In deciding Elonis, the Supreme Court ruled that when a statute is ambiguous, the level of intent required to convict is “only that [intent] necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” In Elonis, the Court decided that the “negligence” standard did not sufficiently separate true threats from harmless Facebook rants. However, the Supreme Court declined to decide what level of intent would be necessary to convict someone under this statute.

For now, what this decision means is that U.S. Appellate Courts are free to decide what the appropriate level of culpability is for conviction under 18 U.S.C. §875(c). As Justice Alito’s concurrence argues, the Appellate Courts’ previous willingness to convict under the “negligence” standard, and the Supreme Court’s prior decisions on other ambiguous statutes strongly favor conviction under a “recklessness” standard.

Adopting the “recklessness” standard would mean a person may be convicted under 18 U.S.C. §875(c) where he knows there is a substantial risk that others will perceive his posts as threats, and he disregards that risk, and publishes the posts in spite of that risk. If the “recklessness” standard is later adopted, Courts will also have to consider whether the application of this law violates the First Amendment right to free speech. However, because “true threats” are not protected by a First Amendment, Justice Alito’s concurrence argues that a statement that was threatening enough to warrant a conviction under 18 U.S.C. §875(c) would probably not be protected by the First Amendment.  

Social Media law is still developing, and no one can be certain of how the courts will handle this issue in the future. For now, the common sense takeaway from this Supreme Court decision is “think before you post.” Social Media postings can have serious consequences, both on your current litigation, and on your freedom. Ultimately, the Supreme Court overturned the conviction in Elonis, so some may say he “got away with it.” However, Elonis lost his job and any chance of a civil relationship with his ex-wife. The U.S. Supreme Court case was the culmination of almost five years of expensive, time consuming, stressful, and bitter litigation. The Supreme Court’s decision cannot give Elonis back the last five years of his life.

Before you write that Facebook rant, remind yourself what could be at stake.  Then find a counselor, or your private journal, and express your feelings through those mediums instead.

This blog was written by Jill Fitzgerald, third year law student at Drexel University Thomas R. Kline School of Law and edited by Linda A. Kerns, Esquire.

Wednesday, June 10, 2015

Mental Health as a Factor in Custody Litigation

Custody litigation becomes more complicated when one or both parents experience mental health problems. Unfortunately, according to the National Institute of Mental Health , approximately 28% of Americans suffer from some mental illness, with about 4% of those people battling a serious mental illness. While most feuding parents accuse each other of faults, including mental health issues, truly impaired parents cannot effectively parent or even fully participate in the court process.

Where one parent suffers from a mental illness, Pennsylvania Courts must still perform an extensive factual analysis of the factors enumerated in the Pennsylvania custody statute. In evaluating these factors, the Court must, as always, focus on the best interests of the child. The mental health of a parent may affect the determination when that parent’s behavior is viewed in light of the custody factors. One example of this is the case of C.S. v. T.S. (No. 1700 WDA 2014), recently decided by the Superior Court of Pennsylvania. While this is a non-precedential decision, which means it is not binding on any Court, the Superior Court’s opinion provides some insight into the way the court may address mental health issues in child custody litigation. It also contains a comprehensive review of the factors in the custody statute.

In C.S. v. T.S., the Court addressed the Mother’s appeal from a custody order denying a petition for shared custody of the children where the current arrangement granted Father primary custody and Mother partial custody. In this case, Mother suffered from a mental illness.

While evaluating the custody factors, the Trial Court placed special emphasis on Mother’s in-court and out-of-court behavior during the litigation. The Trial Court especially noted Mother’s tendency to show up at Father’s house, uninvited and unannounced to see the children off to school or question the competency of Father’s babysitters. The Court agreed with Father that these incidents emphasized Mother’s poor decision-making capabilities and lack of regard for the stability of the Children’s lives.

The Court further noted that during her testimony, Mother had difficulty staying focused and displayed no respect for Father. Perhaps most importantly, the Court noted that Mother’s gas had been turned off for almost a year due to nonpayment.

Throughout this case, Trial Court and the Appellate Court stressed the importance of a stable environment for the children to live in. The evidence demonstrated that Father’s home was more stable, and that increased time with Mother would jeopardize that stability.

While the Court recognized that Mother had good intentions, it was concerned by the “harsh reality of her own behavior” even though the Court recognized “she ha[d] very little control over it due to her mental health issues.”

When the mental health of a party is a factor in custody litigation, parties must remember that Judges are required to consider the custody factors, and evidence of erratic or unstable behaviors may significantly influence the judge’s decision. Parties must be careful to understand that even if the other parent acts unreasonably or irrationally, whether or not due to mental illness, the other parent must still cooperate and navigate the needs of the children as well as the relationship with the other parent. Although frustrating, Courts will still expect some degree of co-parenting and cooperation.

Additionally, accusation of mental health defects in bitter custody disputes tend to be common.  In disputed custody cases, virtually all parents accuse the other party of having mental health problems.  Actual, mental health disease with demonstrated adverse effects on the children are different then generalized, "the other party has a problem" allegations.  Litigants, when presenting their case, should focus on the facts (examples of the other parent’s behavior) rather than the conclusion (simply accusing the other parent of having mental health issues). Let the Court draw conclusions from the evidence you present.

This blog was written by Jill Fitzgerald, a third year law student at Drexel University Thomas R. Kline School of Law.  Edited by Linda A. Kerns, Esquire.

Wednesday, June 03, 2015

How does the court in Pennsylvania assess earning capacity for support?

Courts in Pennsylvania calculate support based on the payor's actual earnings and earning capacity, if the court believes the payor is not earning up to his potential.  Being assessed a support number based on earning capacity can be devastating to the payor --- if you are not actually earning the number on which your support order is based, you can end up owing much more than you believe you can afford.  However, under the law, the court has a right to assess an earning capacity.

Recently, the Superior Court of Pennsylvania addressed an earning capacity issue -- and set the Father's earning capacity at $91,000 per year even though he testified he was earning only $58,841.38 per year plus an $8,000.00 bonus.  The court based its order on Father's prior earnings as well as his experience.  You can read the full opinion here which offers a detailed explanation of how the court calculated the earning capacity.

Earning capacity cases require detailed preparation and a thorough review of the available evidence. The trial court has discretion in determining earning capacity and litigants must present comprehensive and specific evidence to support their case.

Tuesday, May 26, 2015

When divorced parents cannot agree on private school in Pennsylvania

When parents separate, the same income that was used to support the intact family must thereafter be spread over two separate households.  This generally means cuts will be necessary in some areas of the each parent’s budgets due to duplication of living expenses that the parties previously paid as one unit, such as rent, and utilities.  If the parents, living as a family unit, were barely making ends meet, dividing the household, and therefore the available income, can be devastating to some budget items.

An excellent example is private school tuition.  For most parents, even intact families, private school tuition requires a sacrifice of other budget items.  When parents separate, and must stretch their income, private school goes from being a stretch to simply unaffordable.  Unfortunately, if one parent wants to continue to send the child or children to private school, even over the objection of the other, a parent can be compelled to do so by the court, even if it will cause extreme financial hardship.  

When faced with the issue of whether to order that a child continue at private school over the other parent’s objection – and possibly compel the objecting parent to pay– the Judge must consider whether the cost of the private school is a reasonable need of the child and a reasonable expectation and expense of the parents.  This analysis requires a detailed review of the specific facts of the case.  The Court looks to whether the child is benefitting or will benefit from the private school education and whether private school is consistent with the family’s standard of living prior to separation.  Accordingly, the Court looks to the parents’ choices during the marriage and the history of the parents, including whether the parents themselves went to private school as children.

In determining whether or not a child will benefit from private school, significant testimony is often necessary, on topics such as whether the child’s emotional or academic needs are being met by the school, and the child’s actual experience at the school, including grades and activities.  Often, the parents differ in their perceptions of the school’s benefits, leaving the Judge to make a credibility determination.

In order to convince the court that the same benefit could be had at a lower priced school or a public school, the objecting parent must provide the court with comprehensive evidence proving that the public school would be just as good or better for the child.  This kind of evidence is not always easy to present without hiring an expert on education. Even with an expert witness, this evidence may be difficult to gather. Public school teachers and administrators often cannot or will not testify, hindering the expert’s ability to gather the relevant facts and present them to the court.  The cost of the litigation can sometimes exceed the cost of the private school tuition over which the parties disagree.  The question then becomes one of practicality–weighing litigation costs versus potential results.

Parents who choose private school, and then separate, often disagree over the child’s needs to continue that schooling. These contests become a heart-breaking tug of war, with the child in the middle.

Recently, in Montgomery County, parents who earned relatively modest incomes chose to send one of their daughters to a private school while they were still together as a family.  However, the parties’ marriage broke down partially due to the significant financial strain placed on the family by the cost of the tuition.  The father agreed to continue contributing only towards the oldest child’s first year of private school but then refused to make continuing contributions, arguing that his income and the parties’ lifestyle simply did not merit such an onerous expense. However, as child support determinations are always modifiable, after several years of not receiving contribution from the father, the mother filed a petition to amend the support order, asking that the father contribute to the private school tuition not only of the older child but also of a younger daughter who had recently enrolled.

Ultimately, after extensive litigation, the Court ordered the father to pay $524.87 per month towards the tuition costs, bringing his total child support obligation, which included his basic child support and his contribution towards medical insurance to $1,619.62 per month.  The court determined that the father netted a little less than $4,400.00 per month, but the father felt this child support obligation was confiscatory and would force him into poverty.  Unfortunately, none of his arguments persuaded either the Trial Court or the Appellate Court to which he ultimately brought the case.

Parents want the best for their children and most would not deny their offspring the best education they could possibly provide.  However, the reality of the cost of daily living expenses means that many families, although they may wish to send their children to private school, simply cannot afford it.  Unfortunately, when warring spouses present the issue to a court, they are leaving that question up to a Judge.  The results can be financially devastating.  The case described in this article is captioned Barnes v. Barnes and the full Opinion can be found by clicking here.

Parents who are currently sending their children to private school and separate or separate before the children are even of school age and fear that the other parent will attempt to compel private school, should understand the law in Pennsylvania as well as how to present their case in the most compelling and persuasive manner.  Once a judge orders a parent to contribute towards private school tuition, it is the rare case when that parent will later be relieved of the obligation. In many cases, the parent may be come obligated to pay until the child graduates, which often interferes with the parent’s ability to provide other support for the child or to save for college.  As the decision often sets a long term precedent, parents must understand the impact of a childhood of private school tuition and establish their case as early as possible.

Friday, May 22, 2015

The factors a court in Pennsylvania must consider in awarding custody

Anyone litigating a custody case in Pennsylvania most likely has heard of the factors in the custody statute.  When “ordering any form of custody,” a court must consider the 16 factors listed in the statute and also explain their consideration of the factors in the final decision.  When a judge does not adequately analyze all of the factors in the statute, the losing party has a good chance on appeal of having the Superior Court overturn that decision.  However, the definition of “adequately analyze” can be wildly interpreted.

Recently, in Philadelphia County, parents were litigating over who should have custody of their 2 year old child.  The trial court ultimately awarded primary custody to Mother, providing her with 8 days out of every 14 while Father had partial custody for 6 days out of every 14.  Notably, one more day taken away from Mother and given to Father would have been an equally shared custody arrangement.

Father appealed because, although the Judge’s ruling seemed to indicate that the child would be better off with Father, the Judge awarded primary custody to Mother.  Ultimately, on appeal, the Superior Court sided with Father and he gained primary custody, on the basis that the analysis by the trial judge tilted towards Father.  This particular case, for which the Opinion can be found by clicking here, was a Philadelphia County case where the wait for court times is notoriously long.

In this case, when the parties separated, Mother created the status quo by taking custody of the child.  She then denied Father access and at the initial Court hearing, the Court granted him very limited time with the child.  Unfortunately, when the case finally went to a full trial, the court relied on the so-called “status quo,” in that the Mother had been the primary custodian for quite some time.  However, the Appellate Court rightly noted that the status quo was Mother’s creation; Mother had taken the child and then purposely limited Father’s time, thereby making her the de facto primary parent.  This Opinion is also notable because both the Trial Court and Appellate Court commented on the apparent lack of cooperation between Mother and Father which the court found was due to Mother’s attitude as well as the maternal grandmother’s interference with parenting.

Clients are often told during custody hearings that they should do everything possible to cooperate with the other parent, both because it would be in the child’s best interest to have communicating parents and because cooperation with the other parent is a factor the Court always considers in awarding custody.  Unfortunately, due to the hurt feelings, mistrust and emotional toll of custody litigation, parents often do not heed this advice.  Refusing to cooperate with the other parent may be one parent’s way of trying to protect the child from the other party’s allegedly inferior parenting.  However, many times, failure to co-parent can backfire, causing the Court to look upon the non-cooperating parent unfavorably.

In the case discussed above, for example, the Appellate Court noted that “due to the lack of cooperation cited by the Trial Court [on behalf of Mother], awarding primary physical custody to Father might be of significant benefit to Child. . . and might make Mother realize that her lack of cooperation and attempts at alienation will not be rewarded.”

Cooperation between parents not only benefits the child, but may help in custody litigation. Parents going through child custody litigation should make every effort to cooperate with each other, and ensure that both parents remain in contact with the child.

Wednesday, May 20, 2015

Is child custody really a fight over money?

In Pennsylvania, the parent with primary custody has a right to receive child support from the other parent.  The custody statute defines the primary parent as the parent with the greater number of overnights.  Accordingly, a parent having at least 8 overnights in a 14 day period, is considered the primary parent.  Some people would view a custody arrangement where the time with the child is almost evenly split to be a shared arrangement.  In fact, some judges even call this a shared arrangement.  However, for purposes of child support, the parent with even one more overnight is considered the primary parent and is therefore entitled to receive child support, although this support would be slightly discounted in a nearly shared arrangement.

Even if the custody arrangement shifts to a true shared arrangement, that is the overnights are shared on a 50/50 basis so that in a 14 day period, each parent has 7 overnights, there could still be a child support order.  In those actions, the parent who earns more money would owe child support to the lower income parent.  This is a desire by the drafters of the guidelines to evenly divide income so that the children have the benefit of the income in both households.

Depending on the respective parents’ incomes, these quirks in the law can sometimes appear to result in inequities.  If the children spend almost the same amount of time with each parent, shouldn’t there be a more equitable way to address support?  Additionally, in some cases, the parent with slightly less time may be the parent who takes on must of the “primary parent duties,” but because custody is determined by overnights, that parent may not be recognized as the primary caretaker.
Recently, in a non-reported decision in the Superior Court of Pennsylvania called M.R.D. v. L.R.D., the court addressed these very issues.  As this is a non-reported decision, it cannot be used for precedential value.  However, it is helpful to understand the court’s reasoning and plan for your own case.

In M.R.D. v. L.R.D., the parties’ property settlement agreement created a custody schedule under which Father had more custody time than Mother.  A few year later, Mother filed a custody complaint and the court ordered shared custody, of seven days per parent in each two week period. When the child custody order was changed, support became an issue between the parties. Father continued to assert that he was the primary parent, and was thus entitled to child support. Rather, the Court found that Mother, whose monthly income was lower than Father, would receive child support as a result of the shared arrangement.

The Trial Court noted that the laws covering child support “recogniz[e] that the a primary custodian will bear most of the expenses of the children simply by virtue of having custody of the children for the majority of the time” but that when parties share custody “these expenses will be born in a more equal manner.” The trial court then applied the formula for calculating support obligations dictated by Pennsylvania Law.

Unfortunately, child support can motivate parents to fight over that one extra day.  In some cases, however, parties seek the psychological advantage of being called the primary parent. Whatever the reason, parents must thoughtfully and carefully seek the best child custody arrangement possible, taking all of the consequences, financial and otherwise, into account.

Wednesday, May 06, 2015

Re-entering the workforce

Separation and divorce often means a previously non-working parent must re-enter the workforce, often after significant time at home raising kids.  With the job market so competitive, finding a job can be daunting, especially when your skills and experience may be lacking due to your time out of the employment world.

The informative website: Learnvest.com posted an excellent article detailing three actual stories of women who re-entered the workforce and succeeded.  Read the inspiring tales here.