Tuesday, April 01, 2014

As most people familiar with child custody litigation know, when a trial court decides an award of physical or legal custody, the judge must address the sixteen factors in the custody statute and delineate the reasons for the decision on the record or in open court.


The section of the custody statute reads as follows:

§ 5328.  Factors to consider when awarding custody.
(a)  Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2)  The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
(3)  The parental duties performed by each party on behalf of the child.
(4)  The need for stability and continuity in the child's education, family life and community life.
(5)  The availability of extended family.
(6)  The child's sibling relationships.
(7)  The well-reasoned preference of the child, based on the child's maturity and judgment.
(8)  The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9)  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
(10)  Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11)  The proximity of the residences of the parties.
(12)  Each party's availability to care for the child or ability to make appropriate child-care arrangements.
(13)  The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14)  The history of drug or alcohol abuse of a party or member of a party's household.
(15)  The mental and physical condition of a party or member of a party's household.
(16)  Any other relevant factor.

However, every matter before a trial court does not involve an award of custody.  Parents often ask judges to decide much more narrow issues, such as pick up and drop off locations, transportation responsibilities, telephone call schedules and choice of sports or activities.

Recently, a mother and father in Chester County, Pennsylvania had a dispute over whether the father should be required to take vacation time from work during the three weeks in the summer when he had custody of the children.  The mother believed that the father should take off from work during the entire three weeks and be the primary supervisor of the children.  The father argued that her position was unreasonable and he should be able to work, as long as he had proper supervision and activities for the children while he was working.

The trial court sided with the father and the mother appealed.  Part of the mother's complaint was that the trial court judge did not go through all sixteen of the factors in the custody statute and weigh each and every factor in relation to the decision.  The father argued that the trial court considered the best interests of the children and a recitation and specific comment on all sixteen factors in the custody statute is not necessary when the court is deciding a single issue which does not change the actual physical or legal custody.

The Superior Court agreed with the father.  This case provides guidance for judges and litigants.  When a trial court must decide on legal or physical custody, each of the sixteen factors must be addressed.  However, when deciding on a single issue, such as whether a parent will work during their custody time, the judge must decide by considering the children's best interest.  You can read the complete case here.

Friday, February 07, 2014

What is Co-parenting Counselling and How Can it Help?

My colleague, Stephanie Newberg, M.Ed., MSW, LCSW wrote a detailed, informative article regarding parenting your children after separation.  As an experience co-parenting counselor, she explains the process and provides tips.  Read her article: Divorcing Parents: Proven Ways to Ease the Transition.

Tuesday, February 04, 2014

Who claims the kids?

Every year, about this time, the Internal Revenue Service updates its very helpful Publication 504 Divorced or Separated Individuals.  Nothing substitutes for the advice of an experienced accountant and attorney but Publication 504, updated yearly, can give you guidance.

Remember, if you are not the custodial parent and are claiming a child as a dependent on your tax return, attach Form 8332 Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent to your return.

Wednesday, January 15, 2014

Is it child abuse to leave your child in the car seat, in a locked car, while you run a quick errand?

The New Jersey Appellate Court said yes to that question, in certain circumstances.  Read the opinion here.

Grandparents' and Siblings' Rights in New Jersey

In a tragic New Jersey case, the appellate court reversed a trial court decision to dismiss a Grandparents' Complaint for Custody time with their child.  The Appellate Division approved the opinion for publication, which means it can be cited and has precedential value.  You can read the entire opinion here: R.K. and A.K. versus D.L., Jr.  The 55 page opinion, while lengthy, provides an excellent review of the New Jersey law in this area and is a must read for anyone embarking on litigation concerning a grandchild.

In this case, the Maternal Grandparents sued their son-in-law, the Father of their grandchild, Olga, for the right to have contact with their grandchild.  Olga's Mother had recently died.  Mother and Father had been married.  When they divorced, the court awarded custody of Olga, and her younger infant brother, to Mother, who resided with Maternal Grandparents.  Mother had a history of drug addiction so the Maternal Grandparents provided support and assistance to Mother in the raising and caring of the two children.  While Father still saw the children, he remained bitter that, considering Mother's history of drug abuse, the trial court still made her primary residential parent.

Only a few months after the trial court awarded Mother of the two children, the parties' infant son, Charles, drowned in a koi pond on the property, after managing to slip out of the house unnoticed and falling into the one foot deep pond.  After this devastating incident, Father sued for primary custody of Olga, alleging that Mother and Maternal Grandparents were incapable of caring for her.  Again, his request was denied by the trial court.

About six (6) years later, Mother was diagnosed with a "heart valve problem" and ended up in the hospital for a month.  Father then took custody of Olga but did not allow her to visit her mother even once during the month long stay.  Mother died at the end of the month.

Olga, who by now was twelve (12) years old, remained in Father's custody after Mother's death.  Over the next year or so, Father permitted Olga to call Maternal Grandparents only nine (9) times before cutting off all communication whatsoever.  Father believed he was justified because he felt Maternal Grandparents, as well as Mother when she was alive, placed Olga in danger and abused and neglected her.

Grandparents finally filed a Complaint for Grandparent Visitation.  Unfortunately, after a number of procedural anomalies, the trial court eventually dismissed Grandparents' Complaint, without a full hearing.  As spelled out in the opinion, the Appellate Court reversed the decision and sent it back to the trial court to give Grandparents and opportunity for a full hearing.

This family's sad tale of loss and ensuing bitterness resulted in a completely fractured relationship wherein Father cut off communication with his child's Grandparents while she was still dealing with the unexpected loss of her Mother at such a young age.  Notably, this child had also suffered the loss of her young brother. In the midst of all of this devastation, the legal battle ensued.  By now, both parties have undoubtedly spent significant sums on the litigation --- and they have not even gotten to the trial stage.

Most lawyers, when faced with grandparent cases, first attempt to work out some type of a resolution without the need for court intervention.  Because the families are usually so fractured, litigation is the last thing they need.  However, when attempts at an amicable solution do not result in an agreement, the parties are left with the expense, uncertainties and pain of litigation.  Notably, even though we have a statute on the subject in New Jersey, a grant of visitation to grandparents is not automatic.  Likewise, a parent, despite the autonomy inherent in that role, cannot always prevent a grandparent from obtaining visitation time.  The best first step, if you find yourself in this situation, is to understand the law and consult with an attorney who can explain the process and the strengths and weaknesses of your case.

Tuesday, January 14, 2014

How much can you afford to pay in rent?

Separation and divorce often means moving and possibly renting a new place, even if only temporarily. What other expenses should be in your budget besides rent?  One of my favorite websites, Apartment Therapy, posted a great article today:  What Rent Can You Really Afford?  Budgeting for Extra Monthly Costs.

Friday, January 03, 2014

Divorce through the eyes of a child

Henry James published his novel about a young daughter caught in the crossfire between warring parents,  What Maisie New, in 1897.  Hollywood updated the story and set it in modern day Manhattan in the film version of What Maisie Knew.  While the parents in this story are sensationally irresponsible and unkind, any parent going through a separation or a divorce might see themselves in the story, even if only a little bit.

Here is the movie trailer:

Friday, December 27, 2013

Because none of us live forever

How much and what kind of care do you want to receive if you are admitted to the hospital or become seriously ill?  In Pennsylvania, as in most states, you can make decisions about your care ahead of time while you are healthy and can think clearly.  You put these choices in writing and your loved ones and health care providers will know your wishes.

Advance Directives for Healthcare or Living Wills

This document expresses your wishes in the event you become terminally ill or you are in a persistent vegetative state.  In this document, you record whether you would want life prolonging measures such as to be fed by a tube, be placed on a ventilator or have your heart resuscitated.  You can read more about these documents here.

Durable Health Care Power of Attorney

This document allows you to choose someone to act as your agent to make decisions for you.  You can read more about these documents here.

When you have advance directives, you should share them with your family, loved ones, health care team and lawyer so everyone knows your wishes.  Consult with an attorney regarding the specific terms of these documents and to make sure your documents are properly drafted.

Tuesday, December 24, 2013

Merry Christmas!

Thatcher, our Office Dog showing off our Christmas cards.

We are in the office this week, but with limited staff so if you call and we are not available, leave a message and we will get right back to you.

Merry Christmas!

Monday, December 23, 2013

Penny wise but pound foolish

The name of this case recently decided by the New Jersey Superior Court should be "Penny wise but pound foolish."  Husband and Wife divorced in 2007 and drafted their Marital Settlement Agreement and Divorce Complaint without any input from lawyers.  Although it is not clear from the opinion, it appears as if they cobbled together language from other agreements they found - on the internet or otherwise.

Unfortunately, the poorly written agreement resulted in over three and one half years of subsequent litigation --- beginning in June 2010, the first time the parties started squabbling over the terms of the document, resulting in the hiring of lawyers, depositions, discovery, court hearings, appraisals and ultimately an appeal to the NJ Superior Court.  The moral of the story?  Draft your agreement correctly the first time and obtain competent legal counsel to guide you through the process.  You can read the entire case, captioned Garofalo v. Kutch, here.

Monday, December 16, 2013

Why does my lawyer always suggest co-parenting counselling?

When separated parents have trouble getting along, sometimes they instinctively want to file papers to put their disputes before a court.  However, that should rarely be the first step.

Virtually all judges now want parents to learn to settle their differences and learn to work together (assuming that there is no physical abuse or extreme pathology in the relationship).  

A Co-Parenting Counselor guides parents in learning to communicate and share responsibility for the raising of their children in a cooperative manner that promotes the best interests of the children.  If you and the other parent disagree about an issue, whether it is about bedtimes, diet, activities or more significant issues such as the choice of school or medical/health decisions.  While a judge can make those choices for parents, it is neither practical nor reasonable to turn to the court every time there is a dispute.  Considering it can sometimes take months to get a court date, the problem may have to fester while everyone is waiting.

Recently, the New Jersey Appellate Court decided a case wherein the parents exhibited hostility and a lack of any type of cooperation.  You can read the full opinion here.  Notably, in a footnote, the court stated:

"The parties come from different backgrounds, and each party seems to view the other's lifestyle and life choices with some degree of disdain. They might both benefit from parenting counseling aimed at assisting them to see past their differences, in the child's best interests."

Lawyers know that court will not be the best forum to resolve parenting disputes and often recommend co-parenting counselling first.  Call your insurance company and get a list of counselors and find out whether any of the service is covered.  Not only will this route be cheaper, but also you will usually come to a resolution that is better for your children.  If counselling does not make things better, then by all means seek court intervention.

Thursday, December 12, 2013

Talking Parents

Divorced and separated parents tend to use text messages and emails to communicate.  When going to court, they have a record of what they said to each other. However, text messages can be difficult to print and emails can often be altered.

Now companies have designed website services specifically to control communications between parents.  I recently received an advertisement for a site called: Talking Parents.  The service appears to be free but if you need printouts of your communications, you must pay for the copies.  If you are in a high conflict situation, consider utilizing a service like this to communicate with the other parent.

Wednesday, December 11, 2013

Merry Christmas & Happy New Year

Each year for our firm Christmas card, we incorporate Philadelphia's famous LOVE statute located in "Love Park" at 15th and Arch Streets.  For cards from previous years, look here.  Our friend, and talented Philadelphia Photographer, Dominic Episcopo, assists us with the project each year.  In years past, we have combined the LOVE Statue with the Rocky Statue, the Plug Sculpture (located at the Art Museum) and even with a bee (buzz, buzz!).

This year, we wanted to remind people:

Have you figured it out?  

All you need is love.  (Owl -U - Knead - is LOVE).

Merry Christmas
Happy Holidays!
Happy New Year!

Pay attention until the bitter end - and then read, re-read and proofread!

Most family law cases end up settling.  Yes - even the knock down drag out fights full of animosity, bitterness and rage eventually settle.  Many times that settlement occurs at the courthouse after a long day, at an attorney's office after a frustrating day of negotiation or after so many versions of an agreement are exchanged that no one wants to look at it again.

That fatigue that occurs at the end of the case can cause parties to make mistake, overlook details and forget minor points which could become major headaches later.

Read, re-read and proofread!

Late last week, the Superior Court of Pennsylvania (our appellate court), issued a non-precedential decision regarding whether a Husband had to continue paying spousal support along with alimony. (A non-precedential decision may not be cited in other cases but are often useful to read to understand the way a court makes decisions and what factors tend to be important in cases.)

The parties agreed, in a somewhat confusing agreement, that once Husband had paid alimony in the amount of $10,000, his spousal support (of $947 per month) would end.  Husband planned to make the alimony payments in monthly increments of $500.  Thus, it would take him at least twenty (20) months to pay off the alimony.

Once Husband began making the $500 per month alimony payments, he wanted to stop paying the spousal support.  However, Wife disagreed because she believed he should continue paying the spousal support until she received her complete $10,000.  The parties returned to court, and the trial judge ordered Husband to stop paying the $947.  However, upon appeal the Superior Court reversed.  You can read the entire opinion here.

Much of the confusion, additional legal fees, and squabbles probably could have been avoided if the original agreement was drafted more clearly and all parties had taken ample time to review and consider all of the potential outcomes and pitfalls.  However, at the end of the case, many parties continually say to their attorneys, "I just want this over."  This attitude causes people to rush and not take the time to carefully review all of the provisions of the agreement. 

So -- hang in there for a bit longer and make sure you pay attention to every detail.  If you rush through the final issues, you could end up creating a huge headache for yourself down the road.