Tuesday, January 22, 2008

Custody Terms

When parents no longer live in the same household, a variety of custody arrangements exist so that the children can spend time with each parent.

An important step in negotiating a custody arrangement is understanding the terminology. People often demand "sole custody" or "full custody" without having an understanding of the terms.

Physical custody refers to the actual physical control and possession of the child. This term is commonly used to describe the party with whom the child resides. Generally, a parent can have primary physical custody (usually refers to more than half of the child’s time) or partial physical custody (usually refers to less than half of the child’s time).

Legal custody refers to the right to make health and welfare decisions regarding the child. A party may share legal custody of the child but have little to no actual physical custody. In most cases, legal custody is shared by both parents. It is rare that one parent has sole legal custody over the other.

Shared physical custody (sometimes called joint physical custody) refers to an arrangement wherein the parents share the children so that each parent has frequent and continuing contact. Although the term shared or joint custody implies a 50/50 arrangement, sometimes, a court will term an arrangement as shared custody when, in reality, one parent may have slightly more time with the other.

Sole custody is when only one parent has both legal and physical custody, to the exclusion of the other parent. This is rarely the case as the Commonwealth of Pennsylvania encourages both parents to have active involvement in their children’s lives.

Visitation refers to an arrangement wherein a party may have time with the child but the parent with primary custody never relinquishes physical control. Generally speaking, visitation does not involve overnights or the freedom for the visiting parent to take the child away from the other parent’s control.

When filing a Petition for Custody, or negotiating custody with the other party, a thorough understanding of the terminology is important. Unfortunately, without that thorough understanding, a parent may ask for one thing, but receive another due to a misunderstanding of the vocabulary. It is best to review all of the facts and circumstances of your case with an attorney who is familiar with custody law to determine what is best for your particular situation.

Wednesday, January 16, 2008

Til Death Due Us Part, Even The In-Laws

Marriage vows mean "til death do us part" except, in the obvious case of divorce. However, that parting is not always a clean break when children are involved. Sometimes, you must deal with your ex-spouse for years to come. Along with dealing with your ex-spouse, you are also dealing with your former in-laws, which can be painfully complicated.

I recently received an anonymous request from someone who wanted advice on the following issue: father pays child support to mother, who lives with her parents. Mother refuses to tell her parents that she receives money from father. Therefore, the parents view father as a deadbeat. They have gone so far as to send him summary statements of "what he owes them." Presumably, the parents are under the impression that anything they spend on their child (the mother of the children) and her children (their grandchildren) is subject to reimbursement.

The writer asks me how he can stop what he perceives to be harassing letters. I get questions like this quite frequently. Obviously, the situation does not always involve correspondence from former in-laws. Sometimes, an ex-wife harasses an ex-husband, an estranged child sends nasty e-mails or family members or friends of an ex-spouse engage in a pattern of intimidation.

Sometimes, the victim can receive relief through the court. If there is an appropriate relationship which places the parties under the purview of Pennsylvania’s Protection from Abuse Act, and the behavior is sufficiently outrageous, a court can grant a restraining order. Sometimes, within the course of divorce, custody or support litigation, certain restraints are written into court orders or agreements, in an attempt to discourage and/or curb harassing behavior so that parties can get on with their lives.

Unfortunately, the court cannot provide a remedy to every problem relationship. Sometimes, the best way to respond to harassing behavior is to simply ignore it. The harasser is discouraged by not successfully soliciting a reaction from the victim. This type of self-help is often less expensive and less painful than seeking court intervention.

In the example that was e-mailed to me, the former in-laws probably feel that they are paying for the needs of his ex-wife and children, which are not their responsibility. They really do not have a great deal of legal recourse for their dilemma in Pennsylvania. (The writer in this case did not explain what county or state has jurisdiction). Because they are not the custodial parents of the children, a formal request for support through the courts, to be paid to the ex-in-laws by the father, would most likely be dismissed for lack of privity. If the writer in this case is indeed paying support directly to his ex-wife, and she is choosing to hide that from her parents, then the issue is between her and her parents and he should do everything he can to prevent being drawn into the drama. However, my comments are limited to the basic facts laid out in the e-mail, without an opportunity for me to understand all of the circumstances. Unfortunately, there are no easy answers when dealing with relationships in a fractured family. I recommend that the writer of this question consult with an attorney so that he can understand all of his options. He may have exposure for an increased child support amount if his ex-wife files a formal petition with the court.

Tuesday, January 15, 2008

Why Did Britney Shave Her Head?

In custody cases when drug use is suspected, courts sometimes order hair sample drug testing. In this type of a test, a sample of hair is obtained from the person’s head and tested in a laboratory. Hair sample testing (also called hair follicle testing) can usually detect drug use for the previous ninety (90) days or longer. This is much more useful than a urine or a saliva test which usually only detects the use of drugs over the past few days.

Hair testing can reveal the presence of a variety of drugs, including heroine, cocaine, amphetamines, marijuana, nicotine and barbiturates. It costs more than traditional urine tests but can be much more informative. If someone is truly addicted to drugs, it is most often difficult to beat this kind of test as you must stay clean for a significant length of time which is often much more difficult than staying clean long enough to pass a simple urine test.

Some people have been known to shave their head (and other parts of their bodies) in order to remove any evidence of drug use. Accordingly, there may have been a method to Britney’s madness. Immersed in her custody battle, she may have been facing a drug test and figured this was the only way to get rid of the evidence.

Monday, January 14, 2008

But Aren't All Fathers Sperm Donors?

On December 27, 2007, the Supreme Court of Pennsylvania held that a sperm donor involved in a private sperm donation (outside the setting of a commercial sperm bank) who impregnates a woman by clinical rather than sexual means may not be held liable for child support when there is an agreement in effect to the contrary.

In the case of Ferguson v. McKiernan, the Supreme Court considered a case that had been in litigation for years. A man and a woman had been boyfriend and girlfriend who subsequently broke up. Later, the woman, who was married, sought out her former boyfriend to be a private sperm donor. Apparently, she preferred the comfort of sperm from someone she knew, rather than anonymous sperm from a "sperm bank." The actual donation was carried out in a clinical setting and no sexual relations were involved. The parties came to an oral agreement that the man would not be involved in the children’s lives and his identity would remain confidential. Mother eventually gave birth to twins and named her husband as father on the birth certificate. Eventually, the sperm donor in this case married someone else and had children with his wife. In the five years after their birth, the sperm donor saw the mother and twins only a handful of times and did not provide any financial support or any type of parental role. In 1999, in contravention to the parties’ agreement, mother filed for child support.

The trial court denied mother’s request on the basis that they had entered into an enforceable agreement wherein mother gave up her right to child support. The Superior Court reversed the trial court’s decision, noting that a parent cannot bargain away a child’s right to be supported. The Supreme Court considered the case and in an extensive Opinion, overturned the Superior Court, finding the agreement enforceable and thus relieving the father/sperm donor of a duty to child support. Interestingly, of the seven justices sitting on the Supreme Court of Pennsylvania, two did not participate in the decision. Three of the justices were in the majority and two justices filed a dissenting opinion.

Potential sperm donors should learn from this case that, while the sperm donor did prevail, it was by a slim majority of the court and anyone entering into this type of relationship must understand the potential exposure to pay child support somewhere down the line. If you would like to read the entire opinion, click here.

Saturday, January 12, 2008

No More Money Honey said the Ex-Gov to his Ex-Wife

Even the most imaginative Hollywood writer (assuming they ever stop striking) would not be able to create a more intriguing drama than the Jim McGreevey/Dina Matos McGreevey New Jersey custody/child support battle.

The entire drama - from the time he announced his status of "Gay American" to the world in front of his shell shocked wife to the latest round of court battles - provides a stunning example of the misery, bitterness and expense that can be generated by failed relationships. As if public humiliation was not enough pain to bestow on Dina Matos McGreevey, the ex-governor continues to take the path most comfortable for himself, even at the expense of his former wife and daughter.

The disgraced ex-governor is now studying full time at an Episcopal Seminary in New York -- an apparently noble undertaking if you do not take into account his limited income - which can affect his child support. He lives a lavish life-style no matter what his income - his partner/lover is wealthy and can provide him with all of the comforts of an upper class lifestyle.

According to newspaper reports, he currently pays $2,500 per month to support his daughter. Certainly, $2,500 per month (non-taxable) is not insignificant -- and in the upper tiers of New Jersey child support orders. However, ex-governors (even those that resign amidst an embarressing scandal) can usually command inordinately high salaries in the free market. Of course, his child would benefit from his extra income. Jim McGreevey, however, has chosen to pursue a much less lucrative theological career.

Dina Matos McGreevey is fighting back. Facing her own financial difficulties due to the potential loss of her job, she is going back to court. According to newspaper reports, she sent subpoenas to Jim McGreevey's partner/lover in order to dig through his finances. Additionally, she is seeking copies of emails between the ex-gov and his partner/lover, as well as emails that went out to their friends, including high level members of New Jersey government.

Sending subpoenas does not necessariliy mean they will be answered. The recipient can ignore the subpoena - which is apparently what happened here. So Dina is asking the court to intervene, requesting an order, directing that the information be turned over to her. Now this is not an easy task --- she will have to show the judge why this information will be relevant to her custody/child support action and how it will assist the court in making a decision. Generally, the finances of your ex-spouse's new lover/paramour/husband/wife/signficant other are simply not relevant --- that person generally has no duty to your child. But maybe Dina suspects shenanigans -- the hiding of money, diverting of funds, backroom deals -- and wants to bring it to light. Maybe she wants to show the court that the ex-gov's partner/lover is so rich that he is taking care of all of Jim McGreevey's earthly needs -- so that while he is riding that all-expense gravy train -- he can well afford to pay more support to benefit his little girl. Or just maybe Dina is trying to create as much chaos as possible, hoping that the McGreevey will take a break from his seminary studies and throw a little more child support her way. Whatever, the reason, they are both in for much more litigation and media attention. I hope their little girl is insulated from her parents' war.

Friday, January 11, 2008

Pennsylvania EPPI Card

Some people in Pennsylvania receive their support on a debit card known as an EPPI Card. You can use this card like a debit card at a store and also withdraw cash at bank machines.

If you received an EPPI Card before 2004, it is most likely expiring. A new card will be issued. For more information, you can call EPPI Card Customer Service at 1-800-304-1669 or visit the Pennsylvania support website at (www.childsupport.state.pa.us).

Monday, January 07, 2008

Beware of the Internet During a Divorce

Myspace, Facebook, Youtube, Match.com . . . there seem to be countless ways available to post intimate and comprehensive details about your personal life on the Internet. Always be mindful, however, if you are going through a divorce, that your spouse, or his/her lawyer could be keeping tabs on you by checking out your internet site.

Something that may seem funny or cute on a Myspace Page might look immature and irresponsible when photocopied and introduced into evidence in a custody trial. You may claim a certain income for purposes of divorce -- but know that if you put a different income level on your Facebook profile or Match.com page --- you could be asked during a support trial whether you were lying then - or lying now.

Generally, information that you post on the internet cannot help you in family law litigation. Unfortunately, the information can sometimes be held against you. And be careful thinking that you are protecting yourself just by making your profile only accessible to your "friends." That certainly did not help the mayor of a small town in Oregon.

When dealing with the Internet and divorce -- less is more.

Friday, January 04, 2008

Britney Loses Custody

Click here to view the order suspending Britney Spears' visitation with her children. Her shenanigans caught up with her. She is managing to make an unemployed, would-be rapper look like Father of the Year.

The Surrogate Who Changed Her Mind

Last year, the Superior Court of Pennsylvania handled a heart wrenching case wherein a woman who was hired to give birth to a couple’s triplets, took the babies home from the hospital, violating the biological father’s rights and the terms of the contract she had signed. The case was litigated extensively and the children initially remained with the surrogate mother. Eventually, the Superior Court overturned the trial court and the biological father was awarded full legal custody of the children.

Apparently, however, during the time that the case was pending, while the gestational surrogate maintained custody of the children, she received child support from the biological father. After the biological father won custody of the children, he filed a Complaint for Support, seeking to recover all child support that he had paid the gestational carrier. The case wound its way through the court system, and the trial court ultimately denied his request. He appealed the case to the Superior Court, who affirmed the trial court’s decision.

It appears that the biological father in this matter felt that the gestational carrier had been unjustly enriched by receiving child support for three children that she had essentially illegally withheld from him, which was really tantamount to kidnaping. However, the right to child support belongs to the children. In this case, the court found that the father had a financial obligation to his children, and would have had that obligation no matter where the children were residing. You can read more about the decision here.

Thursday, January 03, 2008

Divorce, Cuban Style

Apparently, divorce in a socialist country like Cuba is easy- parties do not really own any property so there is nothing to divide. Divorce can take as little as 20 minutes. The catch, however, is that the severe housing shortage forces divorced couples to continue together, in cramped quarters for great lengths of time -- and sometimes the rest of their lives, if new housing does not open up! Read about it here in the New York Times. (Note: registration may be requried to read the article).

Wednesday, January 02, 2008

I Do Equals I Will Support You

Our laws intertwine a duty of support with love and marriage. Generally speaking, if a couple separates, the court will calculate interim support (while the divorce is pending) based on income and/or earning capacity. When resolving the entire divorce matter, and deciding on the alimony question, the court considers a variety of factors. In many cases, the person ordered to pay support/alimony feels that they are paying too much while the person who is receiving the support/alimony feels that it is too little.

On the last day of 2007, the Superior Court of Pennsylvania issued an Opinion in a case where a husband was ordered to pay his former wife $500 per month in alimony for an indefinite period of time, after only a four year marriage. This result is unusual in that, generally speaking, Pennsylvania can be considered a relatively conservative state with regard to alimony, so indefinite awards are not commonplace.

In the case of Lawson v. Lawson, 2007 Pa.Super. 413, (December 31, 2007), husband and wife married in 1998 and separated in 2002, and wife filed a Complaint in Divorce shortly thereafter. There was a sixteen year age difference between husband and wife and husband had a significantly higher earning capacity. While the divorce was still pending, wife suffered a stroke that left her completely disabled, requiring a wheelchair and help for her basic daily needs. The trial court ordered that husband pay wife $500 per month in alimony for an indefinite period of time and continue to provide medical insurance coverage. Husband appealed, citing the short term marriage and the significant debt ($60,000) that he has assumed at equitable distribution. The Superior Court considered each issue raised by husband carefully and addressed the facts and relevant case law, ultimately affirming the trial court’s decision. Accordingly, while an indefinite alimony award is unusual, on the facts of this case, the court felt it appropriate. Read the case here to review the factors a court considers when deciding these issues.

Two Minus One Equals One

Separation and divorce means you are single again -- and sometimes that means an adjustment period. Check out this website: www.singleedition.com. It is devoted to issues confronting single people - you might find some helpful information.