Tuesday, January 31, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



Do a social media background check on yourself. Remember that some aspects of your life are meant to be private and what is posted with friends, especially “facebook friends” does not always stay with friends. If you are going through a divorce or a support and/or custody battle, realize that the other side, and their lawyer, may be trying to dig up as much information on you as possible. Make sure it is not available. A good rule of thumb is that if you would not want the judge in your case to read it, then do not post it. You also may want to consider searching for yourself, including all of your nicknames, and email addresses to see what shows up on the internet. Re-evaluate the privacy settings on all of your social networks and untag and distance yourself from these types of sites. You should also take the opportunity to change all of your passwords. Remember, if someone else can guess your passwords, all of your personal information will be unleashed.


Tuesday, January 24, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.



There is a Chinese Proverb that goes something like this:


"A child's life is like a piece of paper 
on which every person leaves a mark."


Imagine the marks left on a child during a brutal custody and support battle.  Do your best to love your children more than you dislike the other parent --- sometimes you can cut down on the fighting with this attitude.

Wednesday, January 18, 2012

We have a new custody statute in Pennsylvania

Enacted last year, our new custody statute specifically lists the relevant factors that a court must consider when ordering any form of custody.  The statute uses the word "shall" which means that the trial court does not have a choice and must consider each one of these factors when making a decision.  Here is the new statute, in its entirety:

Section 5328(a) provides:
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. 

(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. 

23 Pa.C.S.A. § 5328(a).

So -- the question for those of us involved in custody litigation is:  How do the courts apply this statute?  We find the answer by looking at cases that have been appealed and reviewing the opinions of the judiciary.

In December, the Superior Court of Pennsylvania reversed and remanded a case back to the trial court when the trial court judge failed to follow the statute.  In the case of  J.R.M. versus J.E.A., 2011 PA Super 263, a Father appealed a very restrictive custody order entered by the trial court.

The background facts are worth mentioning only because the litigation and strife is lasting far longer than the whirlwind romance that produced the child who is the subject of this proceeding.  Additionally, I have handled countless cases like this one regarding infants so the situation is quite common.


Mother and Father dated only a month before becoming engaged -- and Mother became pregnant two months later.  However, love was soon lost and they broke up -- so bitterly that Mother did not even tell Father when she gave birth.  When Father found out about his child, he contacted Mother, who set up all sorts of elaborate restrictions on his time with the child, including that it was essentially supervised and he could not take the child back to his home.  Mothers of infants are understandably fiercely protective of their babies -- and in this case she barely knew the Father.  Imagine her concern in letting her baby go with a stranger.  However, this stranger is the child's Father and as such has as much right as Mother to time with the child.

After litigation, the trial court basically sided with Mother but limited its analysis to the fact that she was breastfeeding which would limit the time the child could be away from her.  Father appealed the very limited custody order and the Superior Court essentially agreed with him -- sending the case back to the trial court to consider ALL of the factors in the statute.

The lesson to be learned:


In custody matters, be ready to present your case to the court with a knowledge of the factors in the statute, bolstering your position with specific examples.


Tuesday, January 17, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.




Carol Burnett once said:


"Words, once they are printed, have a life of their own."


If say something by email, facebook, tweet, text or other written form, remember how it will look if a judge reads it!

Monday, January 16, 2012

How Long? Not Long!

Mine eyes have seen the glory . . .


Tuesday, January 10, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


Need to find out information about the court system in Pennsylvania?  The Unified Judicial System of Pennsylvania operates a comprehensive, informative website at http://www.aopc.org/default.htm.
 
You can also find links to county courts, which offer specific information for each county at:
 
http://www.aopc.org/Links/AskedAnswered/LinksToOtherSites.htm#county.

Friday, January 06, 2012

Waiting to complain about something during an appeal is usually too little, too late

It has long been the law that in order to appeal an issue, you must preserve it at the trial court level or the appellate court cannot and will not hear it.  If an error occurs during your trial, you must log an objection -- or it is considered waived.  If a court allows hearsay testimony, fails to file procedure, misapplies the rules of evidence or otherwise makes and error, you cannot simply sit idly by and think to yourself, "I won't say anything now but I will really complain about this to the appellate court!"  If you do, you lost your chance forever.




In the recent Pennsylvania Superior Court case of Summers v. Summers, (quite the name to consider on a cold winter day), the parties appeared in court when Father filed a petition to reduce his child support.  The Court apparently accepted into evidence a letter from Father's doctor that indicated Father was disabled and could not work.  Mother did not have the opportunity to cross examine the doctor or explore the issue further.  However, she failed to object during the trial.

On appeal, Mother argued that the trial court had reduced Father's child support on the basis of the doctor's note which was hearsay and should not have been admitted as evidence.  Mother's claim is indeed accurate --- a doctor's note, without more, is indeed inadmissible hearsay evidence.  However, the appellate court found that because Mother did not object during the trial, she waived her right.

No doubt Mother handled the trial on her own, without an attorney.  When she was not happy with the results, I imagine she found a lawyer to prepare and file and appeal and that lawyer noticed that the note, which is hearsay, was entered into evidence.  Raising this objection for the first time on appeal, however, simply does not allow the court to provide relief.

The moral of the story:  make your objections at the trial court level so that if the trial court does make a mistake, you preserve your right to appeal.

Tuesday, January 03, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.


When you divorce, you should update all financial paperwork, including your estate plan, beneficiary designation on your assets and insurance beneficiaries. Make a list now of all of your accounts, insurance policies and assets with beneficiary designations so that you can make appropriate adjustments in conjunction with your divorce.

Sunday, January 01, 2012

Happy 2012!

Be always at war with your vices, at peace with your neighbors, and let each new year find you a better man.  


~Benjamin Franklin