Contempt of Custody

When a parent interferes with child custody or otherwise does not follow a child custody order, the other parent may file a petition to have that person held in contempt of court. If the court finds the person in contempt, it may assess sanctions, which includes attorney’s fees. Practically speaking, as a sanction, the assessment of attorney’s fees is relatively rare in custody matters. Additionally, even when attorney’s fees are assessed, the amount is often much less than the actual monies spent on an attorney.

The Superior Court of Pennsylvania issued an Opinion this week wherein a mother was found in contempt of a child custody order and ordered to pay attorney’s fees in the amount of $500. On appeal, the Superior Court affirmed the trial court.

In this case, the parties argued over a Thanksgiving Day custody schedule. Notably, their custody order apparently indicated that Thanksgiving Day arrangements should be by "mutual agreement." As a side note, using that type of a phrase in a custody order usually guarantees that at some point, when there is not mutual agreement, chaos will ensue.

The Superior Court outlined all of the facts and circumstances that led to the contempt citation. You can read the full Opinion here.

As you can see from the Opinion, Father alleged that he attempted on numerous occasions to contact Mother, and his son, but he was unable to as she did not answer the phone. The court ordered both parents to submit their phone records. In the court’s opinion, the phone records supported father’s allegations.

Generally speaking, it is usually a good idea to keep a calendar or a log of communications with the other parent. This way, if there is ever an argument later, you will be able to produce credible testimony regarding the history of your case. Additionally, it can sometimes be time consuming and expensive to order phone records so try to download them or save the print copy every month if you feel you may ever have to prove attempts to contact.

Proposed New Child Support Guidelines in Pennsylvania

Periodically, the child support guidelines in Pennsylvania are reviewed and updated.

New proposed guidelines have been drafted and they have been published for comment. You can review them in their entirety here. The comment period on this proposal ends on October 31, 2008.

One of the most significant changes is that the top guideline income amount has been raised to $30,000 net per month (the top is currently $20,000 net per month).

Notably, these are in the proposal and comment stage, so changes could be made prior to their actual adoption.

Child Support $25 Annual Fee

The United States Congress recently passed a law requiring a $25.00 annual fee for certain child support cases. When the state collects at least $500 in child support payments per year and the custodial parent has never received cash assistance, the fee will apply. This fee is apparently intended to cover some of the federal government’s costs of providing child support enforcement services. Pennsylvania began collecting the fee on July 28, 2008. Unfortunately for custodial parents (the parents receiving support), they will be responsible for the fee in Pennsylvania in the event that at least $2,000 of child support is collected. Additionally, the fee is charged for each child support case, so if you have more than one case, you will pay more than one fee.

Love

Quote of the Day:

Love is not blind — it sees more, not less. But because it sees more, it is willing to see less.


— Rabbi Julius Gordon

Paternity by Estoppel

The Superior Court of Pennsylvania recently addressed a case in which a child (born in 1997) had been raised believing that his mother’s former husband (the parties are now divorced) was his biological father. However, now that the parties had divorced, a man alleging that he is the biological father (apparently proved by DNA testing) sought confirmation from the court of his parentage, in an apparent attempt to thwart mother’s former husband from maintaining custody. The trial court granted primary custody of the child to mother’s former husband who he had raised as his own since birth. The court granted mother partial physical custody and prohibited her from allowing the child to have contact with the man who was allegedly the biological father.

The Superior Court addressed the sticky paternity issues and thus discussed the concept of the doctrine of paternity by estoppel, affirming the trial court. You can read the full Opinion here.

Know Your Stuff

In the event of a catastrophe (fire, flood, natural disaster, etc.), insurance companies generally require a list of items lost in order to process a claim. Attempting to reconstruct a list of your possessions in the aftermath of a disasterous event presents an overwhelming challenge in an already stressful and anxious time.

You can build your own home inventory now, so you are prepared if you ever need it. Rather than just writing down a list (which could also be lost in a catastrophe), try the tools available on this website: Knowyourstuff.org. The list can be stored electronically -- and offsite -- for extra safety.

Divorce can also feel as cataclysmic as a natural disaster. Although personal items (furniture, artwork, collections, jewelry, household tools and the like) acquired during the marriage are usually considered part of the marital estate, subject to division, practically speaking, these items often come down to a he said/she said. Unfortunately, it is often more cost effective to let these items go, rather than pay to litigate in the event of a dispute. Adequate evidence regarding the contents of a house often simply does not exist. However, if you prepare an organized, comprehensive home inventory, and the items later go missing at the hands of a vengeful or simply careless estranged spouse, you may have adequate evidence to prove their existence, and support your claim in equitable distribution. Accordingly, the tools at Knowyourstuff.org may assist you. If a software program seems to intimidating, try the worksheets and tips available here.

British Man posts his divorce settlement on a website

A British man posted the terms of his divorce settlement on a website he set up, apparently specifically for that purpose.

He paid his wife millions of dollars in a lump sum (£3,719,000.00 -three million seven hundred & nineteen thousand British pounds sterling) plus monthly support and lots of extras. Apparently he was tired of the rumors and false information being spread. I do not recommend this for anyone, especially people who do not want to chance incurring more attorney fees when their spouse files a motion, asking the court to direct that the details be taken off of the internet.

Changing your address with the IRS

You can use Form 8822 to notify the Internal Revenue Service if you changed your home or business mailing address or your business location.

This becomes especially important if you move before you receive your refund check or you are corresponding with the Internal Revenue Service on an issue.

Who can petition for custody?

To file a petition or complaint, court rules require that you have standing, which means that you must have the right to file that petition or complaint, under the circumstances of the case.

Standing becomes especially relevant in petitions for custody because courts limit who can petition for custody of child. Generally, parents may petition. Additionally, in certain circumstances, someone acting as a parent may petition. In some cases, depending on the facts, grandparents may petition. Generally, courts protect the interests and rights of parents by preventing other third parties from petitioning for custody of their children. These rules can sometimes prevent a concerned neighbor, relative or friend from becoming involved in a child custody matter, no matter how well meaning their intentions.

This week, the Superior Court of Pennsylvania addressed the issue of standing in the context of a custody matter that also wound its way through dependency court. Read the full opinion here.

Mistakes

Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied.

— Pearl S. Buck

When Judges Interview Children

The Rule:

The Pennsylvania Rules of Civil Procedure provide a procedure for courts to interview children, as a part of custody proceedings. The relevant rule states:

The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record. Pa. R.C.P.
1915.11(b).

What this means:

Practically speaking this rule means that the court does not have to interview a child. However, if the court chooses to do so, the attorneys of the parties have the right to be present and ask questions of the child. The proceeding may take place in the judge's chambers (another word for the judge's office) but it must be of record - which means a court reporter will record it. The court does not have to allow the parties to be presnet, but may choose to do so.

Recent case:

In the case of Ottoloni vs Barrett, 2008 Pa Super 154 (July 14, 2008) a case out of Potter County, Pennsylvania, the Father appealed the trial court's order granting the Mother primary custody. In part because the trial court did not follow the above quoted rule, the Superior Court remanded the case for another hearing. You can read the full opinion here.

This case provides an excellent example of the lengthiness of some custody proceedings. The timeline of this particular case:

April 2003 - parties separate. Mother obtains primary custody, Father obtains partial custody.

May 2003 - parties agree to share custody.

April 2004 - court slightly modified the shared order.

December 2005 - Mother filed a petition seeking a modification.

November 2006 - Mother obtains physical custody.

May 2007 - final hearing - Mother still has physical custody, Father appeals.

July 2008 - Superior Court issues order directing trial court to conduct a new custody hearing.

Accordingly, as of July 2008, Mother's December 2005 petition to modify custody is still not resolved. Unfortunately, the lengthiness of custody proceedings is a relevant factor when deciding a course of action in custody litigation.

Prenuptial Agreements

Under current Pennsylvania law, provided there is full and fair disclosure of the financial position of each of the parties, prenuptial agreements are generally enforceable, absetn fraud or misrepresentation, even if the outcome seems unfair.

Before signing any type of prenuptial agreement, you should retain an attorney, familiar in this area of the law, in order to review the document and explain your rights. If you feel you need a prenuptial agreement to protect your own assets (or protect yourself from your future spouse's creditors), consult with an attorney experienced in this area of the law. A poorly drafted prenuptial agreement can sometimes make the divorce process unnecessarily expensive and painful because, in effect, you will need to first litigate the validity of the prenuptial agreement, before even addressing the divorce issues. Accordingly, stay away from prenuptial agreement "forms" from the internet or attempting to draft something yourself if you have no legal knowledge.

Several years ago, the Supreme Court of Pennsylvania addressed prenuptial agreements in a case about a man in his forties who met a teenager employed in a ski shop. He later went on to marry her, buying her what she thought was a fancy and expensive diamond ring.Prior to the wedding, she signed a prenuptial agreement.

When they separated, litigation ensued over the prenuptial agreement. The bitter feud took on a life of its own when the wife realized that her huge engagement ring was actually a worthless cubic zirconium. You can read the sordid details in the opinion. While the court noted its disapproval, it ultimately did not support the wife in her quest to have the entire agreement invalidated based on her receipt of a fake engagement ring.

The moral of the story? There are two:

(1) Seek legal counsel regarding any proposed prenuptial agreements.

(2) Get the ring appraised before you say I DO.

Is Divorce Something to Sing About?

This band from the U.K. apparently thinks so. Check out Elbow's Myspace Page to listen to their single, Grounds for Divorce.

A-Rod's Divorce Complaint

The wife basically wants everything. See the complaint here.

How Am I Going to Pay for College?

Click here for an excellent website on the subject. Learn about 529 plans and use different tools and calculators to determine your options.

Happy Birthday America

None who have always been free can understand the terrible fascinating power of the hope of freedom to those who are not free.

— Pearl S. Buck

The Supremes

No I am not talking about Diana Ross and her cohorts. The Supreme Court of the United States has been in the news lately because of various controversial opinions. In Kennedy v. Louisiana, the court held that our 8th Amendment to the Constitution bars a state from imposing the death penalty for the rape of a child. In District of Columbia v. Heller, the court found that the 2nd Amendment of our Constitution protects an individuals right to possess a firearm.

Rather than depending on television news, newspapers, magazines or bloggers to digest and provide sound bites on these opinions, you can read them in their entirety here.

The Supreme Court of the United States comprises the Chief Justice (John G. Roberts, Jr.) and eight associate justices for a total of nine justices. Approximately 10,000 petitions are filed with the court in the course of each one year term. Only a very small fraction of those are actually decided by the court.