Thursday, September 18, 2014

I have a Final PFA against someone, can I extend it?

Typically in Pennsylvania, when a person files a Protection from Abuse (“PFA”) petition, a temporary order is immediately issued, and is then followed-up with a hearing before a judge within a short period of time.  At the hearing, the judge will hear evidence from both parties, and then determine whether a Final PFA Order should be entered.  A Final PFA Order typically lasts for three years.  

Recently in Trout v. Stube, the Pennsylvania Superior Court clarified when a protected party can request that a Final PFA Order be extended beyond that three year period.  The court reviewed two situations where an order can be extended.

An example of a situation when a PFA can be extended is if the defendant violates the PFA Order through indirect criminal contact.  During the hearing regarding the indirect criminal contact, if the defendant is convicted and the protected party requests an extension at that time, then the court hearing the contempt hearing shall extend the PFA Order under subsection 6114(b) of the PFA Act.  The Trout case clarified that the protected party must request the extension at the hearing, not at a later date, in order to utilize the statutory language that requires the court to grant the extension.

A protected party can also utilize subsection 6108(e) of the PFA Act to request an extension.  Under this subsection, a protected party can obtain an extension if the defendant commits one or more acts of abuse after the PFA Order was entered or if the defendant engages in a “pattern or practice” that indicates a risk of harm to the protected party or child.

If you have a Pennsylvania PFA Order in place, you should know that if you ever feel in danger the most important thing to do is to try to remain safe.  Therefore, you should immediately call 911 if you feel threatened.  That said, once you are in a safe place, you should also contact your attorney to determine the best way to move forward to ensure your continued protection.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at The Law Offices of Linda A. Kerns.

Monday, September 15, 2014

I get along with my co-parent, do we really need a custody order?

Often we have a parent come into our office for a divorce or simply to figure out how custody works, and they wonder whether they really need a custody order.  As far as they are concerned, things with custody are working out fine, and they do not want to disturb the peace or spend the money to obtain a custody order.

Sometimes, depending on what additional information we learn about the parents and children, we agree that there is no need to obtain a custody order.  However, most parents need the security of a custody order.  Custody orders serve multiple purposes, in addition to establishing the physical custody schedule.  They can dictate who provides transportation, who has custody on holidays, and how vacation time will work.  They can clarify how often a non-custodial parent should be able to communicate with the child.  The order specifies who is able to make medical, school and other important decisions.  In short, they can establish the rules for how the family will work, while also clearly defining who has physical custody.

Having a piece of paper to show third parties, such as school administrators, doctors’ offices, legal officials or even athletic teams, that you have legal custody of your child can be vitally important.  It can prove that you have a right to obtain records regarding your child, and in the case of an emergency, it can prove that you have the authority to make decisions for your child.

Obtaining a custody order does not mean that you have to engage in extensive litigation.  If you believe that you and the other parent can reach an agreement on what is best for your child, then it is possible to draft a custody stipulation or agreement.  The nice thing about reaching an agreement is that the power stays in the parents’ hands.  The judge is not the one making the final decision.  Through a series of negotiations and gives and takes, you could reach an arrangement with the other parent that allows both of you to do what you both believe is best for your child.  This spirit of cooperation is a great way to start co-parenting your child.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, September 11, 2014

Home of the free, because of the brave

Can I get divorced now, and deal with the rest later?

For various reasons, clients often would like to finalize their divorce prior to resolving equitable distribution or other issues.  If, for example, the parties have been separated for a long time and they have not been able to agree on a resolution to equitable distribution issues, a party might like to finalize the divorce so that he or she can get remarried prior to such a time that the parties are able to settle or litigate the remaining equitable distribution issues.  This process is called a bifurcated divorce.  At one time, it was extremely difficult for parties to successfully ask the court to bifurcate a divorce, but it appears that these standards might be relaxing.

Under Pennsylvania law, there is a three prong test that must be met in order for a court to be able to grant a bifurcation request. First, the grounds for divorce must be established.  Second, compelling circumstances must exist for the entry of a divorce decree, and, third, sufficient economic protections must be provided to the other party while the remaining claims are pending.  The first prong, grounds for divorce, is something that must be established in every case, and is relatively straight-forward.  It was the second and third prongs that seemed particularly difficult to satisfy.

However, a review of case law in recent years shows that courts have been more willing to find the required compelling circumstances for the second prong and the economic protections for the third prong.  For example, courts have found in certain cases that “compelling circumstances” exist when the parties have been separated for quite some time and one party wants to remarry.  Please understand that what you may consider an extended separation may not be the same definition that the judge has in mind.  For the next prong, the courts have found that “sufficient economic protections” existed when the spouse who opposed the bifurcation was in possession of the property that was subject to equitable distribution.

Although it appears that bifurcation may be easier to obtain today, it is important to discuss this strategic decision with your attorney.  Litigating this issue could take a long time and cost thousands of dollars in attorneys fees.  Cost, however, is not the only factor.  Obtaining a divorce may seem appealing; however, you may lose significant leverage with regard to the pending issues.  You need to carefully weigh whether you are really in a position where a bifurcated divorce will serve you best.  While it may allow you to move forward with a remarriage or other actions, it may mean that you will stay tied to your ex-spouse for a long time if they no longer have a reason to resolve the economic issues.  You should carefully discuss all of your options with your attorney.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, September 08, 2014

Does my child have to testify in our upcoming custody trial?

When a parent is involved in custody litigation, often one of his first concerns is whether his child will have to testify.  Initially, our answer is that it depends on a lot of different factors.  To the extent possible, we often try to avoid having the children testify, because it is an inherently scary thing and children are notoriously unreliable witnesses.  Even when parents believe with certainty that the child will state certain preferences or opinions, the child often will freeze up or simply make things up when speaking with a judge.  When possible, we try to avoid making the child appear in court, especially when the child is very young.  That said, there are some situations where a child will need to testify or where the judge wants to talk to the child before making any decisions.

When a child does have to testify in court, it depends completely on which judge is hearing the case to determine how it will proceed.  Each judge has his or her own preferences.  The Pennsylvania Bar Association recently put together a video discussing the judicial interview of a child.  You can watch it here.  It is a long video, but it gives you a nice overview of the various practices that judges implement, and it also provides insight into how differently various judges will proceed with an interview.  For example, most judges conduct the interview in their office, also known as chambers, so that children do not have to go through the scary experience of sitting on the witness stand.  Most judges prefer to speak with the children alone, without any attorneys present.  If one of the parties is pro se and does not have an attorney, then for the most part neither parent nor any attorneys will be allowed in the room during the interview.  After viewing the video, you should discuss any questions or concerns that you have regarding the process with your attorney.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Friday, September 05, 2014

Helping your kids transition back to school

Now that it is time for students to head back to school, life can become even busier with homework assignments, after school activities and normal day-to-day hustle and bustle.  The transition from carefree days of summer to school can be difficult for any student, but it can be even trickier for students who transition custody between parents’ homes.

Using a color-coded calendar can help children have a better understanding of where they are going to be, which helps them through the transition.  For example, print out a calendar and write all of the student’s activities on it.  Then pick one color for the child’s time at mom’s house and a different color for the child’s time at dad’s house, and fill in the entire calendar with the various colors.  That allows the child to visualize where they will be during for the week for various activities.  The calendar should hang in a central location in the house so that the child can see it whenever they would like.  We have included a sample below.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at The Law Offices of Linda A. Kerns, LLC.

Thursday, September 04, 2014

Who can get custody of a child?

In Pennsylvania, only certain people have “standing” to obtain any type of physical or legal custody of a child. “Standing” is essentially the right to participate in the litigation, and it is specifically defined in 23 PA §5234 and 23 PA §5235.  You cannot file for primary or shared custody unless you fit into one of the following categories:

1.  Parent of the child.
A parent of a child always has standing to file for custody of a child.  This is true even if the parent has not been involved in the child’s life.

2.  A person who stands in loco parentis to the child.
In loco parentis is a legal term that basically means that you have been acting as the child’s parent for some period of time, to the exclusion of the parent that you are trying to replace.  For example, if a child has been living with his aunt for an extended period of time, typically six months or longer, and the aunt has been providing for the child’s daily care and acting as if she were the child’s parent, then the aunt likely would be able to establish standing under this section and therefore file for custody.  However, these cases are extremely fact sensitive and subjective.  Therefore, you should speak with an attorney about your own situation.

3.  A grandparent to the child who is not in loco parentis if:
a. the relationship with the child began either with the consent of a parent or under a court order;


b.  the grandparent has assumed or is willing to assume responsibility for the child;


c.  when one of the following circumstances exists:
i.  the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
ii.  the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity;
iii.  the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

In other words, to be able to satisfy the grandparent section to obtain standing for primary or shared physical or legal custody, you MUST be able to satisfy both requirements A and B, plus you must be able to prove at least one of the factors under requirement C.

If you believe that you have standing under one of the sections above, you should contact an attorney to figure out the best way to pursue obtaining custody of the child.  Remember, simply because you meet the requirements for standing does not mean that you will necessarily be successful in your quest to obtain custody.  Rather, it means that you have the right to pursue obtaining custody through the legal system.  The court will still need to review the custody factors prior to determining who should have custody of the child.

If you do not believe that you meet the criteria above, but you are a grandparent or great-grandparent to the child, you still may be able to establish standing to file for partial or supervised physical custody of a child under §5235.  That section provides that a grandparent or great-grandparent may have standing to obtain partial or supervised physical custody (note that there is no standing for legal custody here), if the following criteria are met:

1.  where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;


2.  where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage;


3.  when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

If a grandparent sues under this statute, the court must find that it is in the child’s best interests to be subjected to court-ordered time with the grandparent.

The language under these statutes is very specific.  Again, if you believe that you might fit the criteria under these sections, then you should discuss your options with an attorney.  By discussing your situation with an attorney, you will be able to determine what your best options are for obtaining custody of the child.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Tuesday, September 02, 2014

Basic Tax Information from the Internal Revenue Service

The Internal Revenue Service published a two page pamphlet: Divorce and non-custodial, separated, or never married parents.

While this publication does not substitute for personal, specific and individualized advice from an attorney and an accountant, it can provide you with an overview of information that will be important to your situation.

For more comprehensive information, view IRS Publication 504: Divorced or separated Individuals.  The IRS updates this booklet yearly.

Monday, September 01, 2014

What is my child support supposed to cover?

As all parents know, raising a child is expensive.  From diapers and wipes in infancy to school supplies and soccer cleats during school years, raising a child has daily costs.  For parents who pay or receive child support, there is often disagreement and frustration regarding what a parent should have to purchase without help from the other parent.

In Pennsylvania, child support is designed to cover a child’s basic living expenses.  In other words, it goes toward their “share” of the rent and utilities each month, but it also goes to routine and expected expenses, like clothing, food and toothbrushes, that are incurred when the child is with the parent.  Even things like school supplies, presents to take to a friend’s birthday party, and the child’s own Christmas presents, which do not arise daily, are typically considered ordinary expenses for which a parent would be expected to pay.  In contrast, if a child is required to purchase a specific computer for school, a new, expensive cheerleading uniform or prescription medications, it is likely that a court would expect both parents to pay for these expenses, depending on the parties’ specific child support order.

Parents should expect that most purchases made when the child is in their custody will come out of their pocket.  For the parent receiving child support, this means that the child support is supposed to help cover these expenses.  For the parent paying child support, you should be reassured that when your child support was calculated, it was taken into account that you would have to pay some expenses for your child when your child was in your custody.  In other words, you pay less child support than you possibly could have, in recognition that you will pay additional expenses when your child is with you.

As your children heads back to school this fall, remember that it is likely to do you no good to keep all of your receipts hoping that the other parent will split the costs.  Unless your child support order specifically says otherwise, these “normal” expenses are likely not going to be viewed as extraordinary expenses that the other parent should reimburse.  It is better to simply be wise and budget appropriately for these expenses.  That said, you can and should discuss these issues with your attorney, especially if you believe that your child support order specifically states otherwise.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 28, 2014

Does a seller have to disclose a murder/suicide that occurred in the home?

Recently, in Milliken v Jacono, et al the Pennsylvania Supreme Court was asked to determine whether a murder/suicide that occurs in a home is a material defect to the home and therefore gives rise to the duty to disclose the defect when selling the home.  

The Court acknowledged that a murder/suicide in a home might create a psychological stigma for the home that would mean that some individuals would not want to live in the home; however, the Court refused to find that psychological stigmas, in general, were material defects that had to be disclosed on a sellers disclosure.  In providing its reasoning, the Court noted that there are too many varying situations that could give rise to a psychological stigma, and that the possible variations in the impact of those situations on a home were too broad to create one rule requiring disclosure.  The Court left open the possibility that the legislature could re-visit this topic, if desired, but that the varying implications were too numerous for the Court to create a general rule.

That said, people who are selling a home that has a controversial history should discuss the issue with their realtor and even an attorney to make sure that the facts of their particular situation do not require that they disclose the event.  If, on the other hand, you are purchasing a home, you should search the address on the internet.  You may discover news reports about the house or the neighborhood that could help you in the decision-making process.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 25, 2014

How do I make our divorce easier on the kids

Going through a divorce is hard on all members of a family, and no parent is expected to know the best way to navigate the process.  This article from the National Association of School Psychologists has some great information and practical advice about different ways that divorce may impact your children and how to support your children during the divorce.  Co-parenting counselors and therapists also can provide great resources.  If you cannot afford formal therapy, you can also look to see whether your church or other community organization offers support groups for divorced parents.

When you consider your options, think about how your decisions will affect your children.  For example, you may want to see your children every day or every other day, but think about how a constantly fluctuating schedule with lots of back and forth between parents’ homes could be unsettling for your child.  Even if the other parent refuses to put your child first, you should be the bigger person.  Your child will notice and benefit.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 21, 2014

Who can participate in a New Jersey divorce?

In a recent New Jersey case, Marsico v. Marsico, the Superior Court had to decide whether a defendant could use a Power of Attorney to allow his adult daughter to act on his behalf in his divorce, even though he was not incapacitated.  A Power of Attorney generally gives an individual, called the agent, power to perform certain legal tasks on behalf of the grantor.  For example, a parent could sign a Power of Attorney so that his child could use his bank account to pay bills and other expenses for him, if he were to become incapacitated or simply because he needed the help.  It allows the agent to act as the grantor in the defined circumstances.

In Marsico, the Husband and Wife were both in their eighties.  Husband had an adult daughter from a prior relationship, and had executed a Power of Attorney, which gave daughter the ability to act on his behalf in legal causes of action.  Shortly after Husband had executed the Power of Attorney, Wife filed for divorce.  Rather than signing the divorce pleadings himself, Husband had daughter sign the pleadings using her Power of Attorney.  Husband did this even though there was absolutely no proof that he was legally incompetent and no party claimed that he was incompetent.  It appeared that he did it simply because it may have been easier.  Wife protested that Husband could not use a Power of Attorney to allow his daughter to act on his behalf in a divorce action.

The court thoroughly examined and reviewed the issues that arise if daughter were allowed to proceed as Husband in the divorce action, and, ultimately, they determined that because Husband was legally competent, he must proceed on his own behalf.  The court was clear that if there had already been a hearing declaring Husband legally incompetent or if someone was alleging that he was incompetent, then the result likely would have been different and daughter could have proceeded on his behalf using the Power of Attorney.  A party’s legal incapacity will not prohibit them from utilizing a Power of Attorney to move forward with litigation.

However, where the party is fully competent, there are too many issues that arise in family law cases that demand that the actual party participate.  Because of the close, intimate relationship that is the basis of a marriage, and therefore the subject of the divorce, there are many times that only a party could accurately testify regarding details important to the case.  For example, a party’s testimony may be extremely important if the parties are disputing the date of separation or whether a particular asset or debt was marital or non-marital.  Additionally, it is important for the court to be able to assess the character and persuasiveness of the party’s testimony.  Moreover, the court was concerned that a party may try to use a Power of Attorney to conceal information or to avoid giving certain information to the court.  Therefore, simply allowing a third party to testify on behalf of the party would not produce the same depth of information, and much of the required testimony may not be heard by the court due to the rules of evidence, such as hearsay.  Although these concerns would be present in all types of litigation, they are heightened in family law cases due to the intensely personal subject-matter.

The Marsico court acknowledged that elderly parties may have more difficulties in coming to court and participating in litigation, but the court insists that there are ways to deal with these difficulties.  For example, the court suggests that a party, for whom attending a court hearing would be extremely difficult, could schedule a deposition for use at trial, which is different than a discovery deposition.  Despite the difficulties that some parties may experience when participating in litigation, the court ultimately found that the individual’s participation in their own family law litigation was vital to maintaining the integrity of the proceedings.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 18, 2014

Watch what you say, especially in front of your children.

When you are involved in family law litigation, whether it be a divorce or custody litigation, it is more likely than not that heightened emotions will arise.  Feelings of betrayal, hurt, anger and frustration toward the other party are strong and common.  It is important to discuss these feelings, but it is more important to share these feelings in an appropriate way.  Discussing them with your therapist, counselor or pastor would be the ideal place to sort through your feelings.  Ranting on Facebook, to your friends in the neighborhood, to the parents of your children’s friends or to other mutual acquaintances is not appropriate and can be harmful to your children.

Despite whatever wrongs may exist in your broken relationship with your ex-spouse or the parent of your children, loudly, frequently and unabashedly discussing these issues in public will only harm you and your family.  Although you may want to hurt the other party in the same way that they hurt you, it almost always will hurt you and your children in some way.  It is even more harmful to make negative and angry comments about the other party directly to or in front of your children.

You need to try to remember that children are sponges and absorb everything that they hear, even if they seem not to be listening.  You may think that they are in their rooms, fast asleep, but in reality they could be wide awake, full of anxiety and overhearing adult conversation.  It can be incredibly hurtful and confusing for children to hear their parents discuss each other in such a negative way.  It is difficult for them to process their equal and shared love of each parent in the context of the harsh opinions of the other parent, and it can make them feel as if they must pick a side.  Additionally, children identify themselves as being half mom and half dad.  If you speak negatively or disapprovingly about the other parent, a child can interpret that as negative feelings about half of their own being.

Take the high road, and discuss your feelings and concerns with the right people in the right places.  You should not keep your feelings bottled inside, but you should be mindful about how you express them.  Remember, when little ears (even the ones belonging to your teenagers or adult children) are listening, it is best to keep this mantra from your childhood in mind:  If you have nothing nice to stay, it is better to say nothing at all.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Thursday, August 14, 2014

I don’t know where the defendant lives, can I still get divorced?

Very often we hear from clients that they do not know where their estranged spouse lives.  This also applies to the other parent in custody and support cases.  They are not sure where the person is living, perhaps because the person is taking to turns living with family and friends or perhaps because the parties have not had contact in a long time.

The problem is that you cannot move forward with any legal complaint, including a divorce, custody or support action, without properly serving the complaint on the defendant.  There are various ways that you can “serve” a defendant, including have a sheriff or process server personally hand the papers to the defendant or using certified mail to send the papers to the defendant.  This is tricky however when you are not sure where the person is living or if the “green card” for the certified mail is not returned.  Sometimes you can serve the person at work or other known place where the person will be.  There are also other various ways of trying to make service.  Notably, you may have to pay a process server or the sheriff.

That said, you cannot, as the plaintiff in the recent Pennsylvania case Mack v Vega and KLMD Trucking, send the documents to the defendant and try to proceed, even though you know that they did not receive the papers.  This case provides a nice explanation of how our appellate process works in Pennsylvania, because it examines various procedural mechanisms, including preliminary objections.  Ultimately though, the court had to decided whether a party could try to proceed with a lawsuit even though he knew that the other party did not originally receive the complaint.  In short, the plaintiff was barred from moving forward because he knew that the other party did not originally receive the complaint, and unfortunately for him, he had let the statute of limitations expire.

If you believe that it may be difficult to locate or serve the other party in your family law matter, you should discuss the issue with an attorney.  Your ability to properly move forward will be hindered if you do not serve the other person.  There is no way to simply obtain a divorce, custody or support order without serving the other party or without demonstrating to the court that you have done everything that you can to try to serve the other person.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Monday, August 11, 2014

Is alcohol a problem for you?

When we bring potential clients into our office for an initial consultation for a divorce, custody or support matter, one of the questions that we always ask the person is whether either party consumes alcohol, including how much and how frequently.  Another question we ask is: what is the worst thing that you have to say about the other party and what is the worst thing that he will say about you.  Allegations about overuse of alcohol often arise as an answer to this question.

We have spoken with many individuals who consume a higher than average amount of alcohol on a regular basis and acknowledge that the other party will allege overuse of alcohol.  These same individuals often will not acknowledge that they may have a problem with alcohol, and they are not willing to change their drinking patterns.  Many of these individuals simply do not acknowledge that they may be an alcoholic or misuse alcohol.

This article discusses a short list of indicators that you may have a problem with alcohol.  If you are involved in litigation and the other party has alleged that you have a drinking problem, check out the article.  If you think you might need and want help addressing your concerns, talk to your attorney, your doctor, your therapist or your pastor.  They will be able to help you find a great professional to help you address your concerns and take positive steps to improve your life and health.

During a custody battle, you should work on your own weaknesses so that the other party cannot use them as a distraction.  If alcohol will be one of the subjects of your custody litigation, resolve now to stop drinking at all so that you can focus the court on your child, not the distraction of allegations of alcohol abuse.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLc.