Saturday, September 29, 2012

Inspiration on a Saturday

"A teacher affects eternity; he can never tell where his influence stops."


- Henry Brooks Adams

Thursday, September 27, 2012

If I do not see my kid, do I have to pay support?

Every few weeks, I get a call from a parent saying that they want to "terminate their parental rights" so that they do not have to pay child support.  However, child support does not depend on how much you see your child and, absent a case when their is another parent willing to step into adopt your child, or your rights are terminated due to severe abuse, neglect or another grave circumstance, you cannot simply and easily give up your rights.

Legislatures draft child support and custody laws from the viewpoint of the best interest of the child.  Generally, children are better off with two parents. Even if one parent chooses not to be involved, that child still has the right to support, inheritance, social security payments and other legal benefits of the parent-child relationship.  Accordingly, parenthood is a genie you simply cannot put back in the bottle.



Separated parents' involvement in children's lives diminish for all sorts of reasons: moving away, strained relationship with the other parent, disinterest in being a parent, unavailability (whether physically or emotionally), active alienation by the other parent, to name a few.  Even in these unfortunate circumstances, a parents duty of support and duty to be a parent does not diminish.  In fact, pursuant to the Pennsylvania child support guidelines, a custodial parent can request an upward deviation in child support in the event that the non-custodial parent has less than thirty percent (30%) of the time with the children. The guidelines allow for this deviation because the calculations assume that the custodial parent has about 70% of the time with the children and the non-custodial parent has about 30% of the time.  If the actual custody strays from those percentages, the child support could be increased or decreased accordingly.



In 2011, a father appealed his child support order to the Superior Court of Pennsylvania, arguing that because the court had strictly limited his custodial rights so that he could only see the child with Mother's permission.  He claimed that this unusual and severely restrictive custody order effectively extinguished his parental rights.  However, the court disagreed and refused t relieve him of his child support obligation.  Notable, in this case, it was Father's own behavior, ranging from disinterest to verbal and physical abuse which caused his estrangement with the the child and resulted in the court's award of sole physical and legal custody to Mother. (Note: Sole legal and physical custody to one parent, over the objection of the other parent, is very rarely awarded by the court and is reserved for only the most severe and disturbing cases.) You can read the full opinion here.

Bottom line?

Absent another parent waiting in the wings to adopt your child, or a termination of your rights by the court due to severe abuse and neglect or some other action on your part which threatens the life of your child, you cannot simply terminate your parental rights, especially not to avoid a child support obligation.








Wednesday, September 26, 2012

When the wife works, but the husband won't

Click here for an excellent essay about a Pennsylvania woman whose husband refuses to work.  She is supporting the family with a job and a side business and he remains unemployed.  Unfortunately, even though she is the one paying the mortgage and saving for retirement, upon divorce, he would be entitled to a share of the assets.  Additionally, because she makes more than he does, she would most likely have to pay him support, possibly for a few years.  However, the longer she stays in this dysfunctional relationship - the more she will have to pay.

I have had many cases where one spouse is the breadwinner -- but not by choice.  These divorces can be difficult due to the resentment and frustration against the non-working spouse.  Sometimes, there are ways to make the situation better, or at least not as bad.  Contact my office for a consultation if you would like to learn more.



Tuesday, September 25, 2012

Man fights paternity claim alleging HIS father (the grandfather) is actually the father of the child

On Monday, the Superior Court of Pennsylvania issued an opinion on a case out of Chester County that includes facts that would make a great soap opera or plot for a cable movie.  Read the full opinion of V.E. v. W.M. here.

The mother in the case gave birth to a child and filed a complaint for child support against the alleged father when the baby was only nine (9) days old.  The alleged father objected, denied he was the father and defended himself claiming that HIS father was the actual father of the child.  The alleged father used the doctrine of paternity by estoppel (when a person's conduct accepting another person as the father prevents them from naming another father).  Generally speaking, the public policy behind paternity estoppel protects a child from assuming for a significant length of time that a person is their father, only to have that person or another challenge the paternity at a late date.  Basically, parents (and alleged parents) are held to their conduct.

Because the child here was only nine days old when mother filed the petition for child support, there was really no time to act as if someone else was the father (in this case -- the alleged father's father!).  For reasons not explained in the petition, the mother put father's father on the birth certificate, who also supported the child and acted as if he was the father.  How the parties got to this point, or why mother appeared to have a relationship with father -- and his father, was not explained by the court.

The Superior Court ordered that the father submit to genetic testing.  If he is indeed the biological father, he will be ordered to pay child support, even if his own father is acting as the father of the child.

This grandfather-father-mother love triangle will make Thanksgiving at this house extra eventful!




Helpful Tip Tuesday

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


Going through a divorce or separation? Change your passwords. Protect your accounts, credit cards and investments. And remember, some passwords can be easy to guess so use a combination of numbers, letters and symbols that will be difficult to crack.

Saturday, September 22, 2012

Inspiration on a Saturday

"Sometimes the best helping hand you can get is a good, firm push."

- Joann Thomas

Thursday, September 20, 2012

The purpose of limited duration alimony in New Jersey


In New Jersey, the goal of an alimony award is to assist the dependent spouse with maintaining a lifestyle that is as similar as possible to the lifestyle he or she had during the marriage. Because two households are more expensive than one, it may be impossible to duplicate the marital lifestyle.



There are three other types of alimony that a court can award in addition to permanent alimony: (1) limited duration, (2) rehabilitative, and (3) reimbursement. This blog addresses limited duration alimony, which is awarded in recognition of a dependent spouse’s contributions to a relatively short-term marriage. An award of limited duration alimony upholds the policy that marriage is an economic and social partnership and that financial and non-financial contributions of both spouses should be recognized. However, it also takes into account the length of the marriage.

The length of the marriage, rather than financial dependency, is the defining distinction when courts decide whether to award permanent and limited duration alimony awards. Yet, courts also will consider the degree of financial dependency of one spouse upon other when deciding if permanent alimony is appropriate.

Mental health issues can lead to one spouse being found to be financially dependent on the other spouse. In New Jersey, however, mental heath issues alone, will not always influence a judge to award permanent alimony. In J.E.V. v. K.V., Wife asked the appellate court to overturn the trial court’s decision to award limited duration alimony for a period of ten years, and instead asked that the court award permanent alimony after the end of their nine-year marriage. J.E.V. v. K. V., 426 N.J. Super. 475 (2012). Over the course of their marriage, Wife had maintained a steady job and earned a maximum salary of $65,000 before she became involved in Husband’s lucrative dermatology business.

Wife argued that she was now unable to maintain a steady job because of her mental health problems, which developed during the last three years of the marriage. Specifically, Wife suffered from bipolar disorder and anxiety. Wife’s psychiatrist testified that she might not be able to retain a job because of the mood swings that she experienced in stressful situations. This psychiatrist also testified, however, that about eighty percent of the patients he treated with bipolar disorder do maintain steady employment. Wife’s vocational expert reported that she told him that she was not interested in employment, but the vocational expert concluded that she was capable of earning between $45,000 and $55,000 per year. At the conclusion of the trial, the judge awarded Wife over $20,000 a month in limited duration alimony for the next ten years, which ended when the youngest child turned eighteen years old.



In setting the type, term and amount of alimony, the trial judge must weigh the thirteen alimony factors set forth in the New Jersey statute. N.J.S.A. 2A:34-23(b). In J.E.V. v. K.V., the trial judge determined that permanent alimony was not warranted because of the short length of the marriage, Wife’s inability to present evidence of a permanent disability, Wife’s ability to earn an income, and the fact that she had been successful in past jobs. The judge also cited to the fact that Wife also received an equitable distribution award of approximately $650,000.

During an appeal, a trial court’s findings regarding alimony will not be vacated unless the trial court clearly abused its discretion, the court failed to consider all of the controlling laws, the court made mistaken findings of fact, or the court reached a conclusion that could not reasonably have been reached given the evidence it was presented. In J.E.V., the appellate court denied Wife’s request for permanent alimony because her economic dependency only arose in the last half of the marriage and the evidence failed to persuade that her mental health challenges prevented her from earning an income. The fact that Husband had started to earn a substantial yearly income in the last half of the marriage was a factor only when deciding the length and amount of limited duration alimony.

The court also relied on the fact that Wife had worked in the past and, throughout the eighteen-day trial, she was able to take notes and participate with her attorney. Clearly, her mental health issues were not as severe as she alleged. Wife was also very involved in her children’s lives and her community which demonstrated her ability to overcome obstacles due to her mental health issues. Limited duration alimony for ten years allowed Wife to remain the primary caretaker of her children and maintain the lifestyle she had previously enjoyed, but required her to prepare to re-enter the work force and take steps to become independent.

Because alimony is highly dependent on facts and circumstances of each case, you should contact an attorney if you have questions regarding alimony.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney at the Law Offices of Linda A. Kerns, LLC.

Tuesday, September 18, 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.

If you are separating or divorcing, review all of your insurance policies: home, automobile, life, health, disability, etc.  Sometime, moving or separating can affect your coverage so make sure you are protected.  For a basic primer on insurance, visit the comprehensive section on Bankrate.com that explains all of the insurance basics.

Sunday, September 16, 2012

Can I get the other parent's medical records as part of a child custody battle?

In child custody battles, especially the disputes that become venomous, one parent will often allege that the other parent has psychological problems.  Unfortunately, these accusations get slung around so frequently that they lose their potential effectiveness. Parents want to protect their children from the possible detrimental effects that a parent with significant psychological issues can have on a child.  However, presenting the appropriate evidence can be an overwhelming challenge.

Sometimes, one parent is so convinced that the other parent's psychological issues will harm the child that they demand the other parent's medical records.  Surely, if those records reveal deep seated and serious psychological problems, a judge would restrict custody!  Unfortunately, custody cases elude this type of simplicity and it can be difficult, if not impossible, to obtain unfettered access to the other parent's medical records.



The Superior Court of Pennsylvania just issued an opinion on this issue in the case of M.M. v. L.M., 1874 WDA 2011 (September 12, 2012).   In this matter, Protection from Abuse actions permeated the parties' brief relationship and marriage.  In April 2010, shortly after the parties' separated, Mother gave birth to their daughter, and Father immediately filed a petition for shared legal and physical custody.  Mother opposed Father, long diagnosed with bipolar personality disorder, having unsupervised time with the infant girl.  The parties wrestled back and forth in court, and Father ended up in the hospital on several occasions for treatment of his mental health issues.  The court ordered that Father undergo a Psychological evaluation and directed that Mother could depose his treating physician.  For reasons not explained in the opinion, neither of these things happened.  Rather, Mother sought discovery of Father's medical records related to his hospitalizations and mental health records.  The trial court ordered that Father release his records.  However, the Superior Court reversed this order on appeal.

The Superior Court discussed the balance between Father's rights to privacy in his confidential medical records and the necessity of examining those records for their relevancy in a child custody proceeding.

Generally, in Pennsylvania, opinions, observations and diagnoses are not protected but a general release of all of a patient's medical records would be forbidden. In this case, the court concluded, consistent with the case law and statutes, that even allegations that a mental health problem is severed do not outweigh the privilege of confidentiality.

Notably, less intrusive alternatives do exist: such as a Court-ordered psychological evaluation, or even a comprehensive custody evaluation.  Both of these tools would allow the evaluator access to a party's mental health records, but do not go so far as to give the other party unfettered access.  The court noted the chilling effect that could occur if one parent had the ability to intrude on the very private discussions between the other parent and his or her doctor.


Do you feel that the other parent in your custody case has mental health issues that could affect the best interest of your child? Before embarking on a discovery battle to obtain unlimited access to the other parent's medical records, a quest that will ultimately fail due to privacy concerns, think about the other, less intrusive methods available to achieve the same goal: a psychotically evaluation, a deposition of the person, a deposition of the doctor or other treating professionals, or a custody evaluation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

Saturday, September 15, 2012

Inspiration on a Saturday

"Nobody will believe in you unless you believe in yourself."

- Liberace

Tuesday, September 11, 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.

Instead of a tip today, we pause to remember all of those whose lives were destroyed on September 11, 2001 and salute all of those who continue to keep us safe.





My good friend, Priscilla Coblentz Cohen, singing God Bless America:



Monday, September 10, 2012

In New Jersey, when does "shacking up" rise to the level of cohabiting?

In New Jersey, as in most, if not all states, alimony may be terminated when the person receiving the alimony begins cohabiting with an unrelated adult who contributes financially to the household and therefore changes the financial circumstances.

New Jersey court have defined cohabitation as "an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage," which include but are not limited to
"living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle." Konzelman v. Konzelman, 158 N.J. 185, 202 6 A-4757-10T3 (1999). In addition, cohabitation requires "stability, permanency and mutual interdependence." Ibid.

Last week in New Jersey, the appellate court reviewed a case wherein an ex-husband presented evidence that his ex-wife's boyfriend had one piece of mail delivered to her house, slept over six nights (but when the children were in residence left in the middle of the night/before morning) and took a vacation with her and the children. Ex-husband suggested that boyfriend had only a sham residence and was, in fact, living with his ex-wife.  However, both the trial court and the appellate court disagreed.

The evidence presented did not persuade the court that that parties actually lived together or that they were in a marital type relationship.  The evidence regarding the six nights was presented by a private investigator -- but the court felt that six nights is only a snapshot and not enough to warrant a finding of cohabitation.  (Editors note:  hiring an investigator to sit outside someone's house the entire night to see what time they leave can be extremely expensive as you are paying the investigator by the hour.)

In the end, the court merely felt that the ex-wife and her boyfriend spent a considerable amount of time together, as people in romantic relationships often do --- so her behavior did not rise to the level of cohabiting.  You can read the full opinion here: Gould v. Gould.  This opinion was not published so we can use it as guidance but it cannot be cited for precedential value.


Sunday, September 09, 2012

Prank call turns into a federal incident

This week, anyone near a TV on Thursday, September 6, 2012 saw a plane at Philly's airport being evacuated and a suspect being taken off the plane in handcuffs.  Every passenger was inconvenienced (even more so than the unpleasantness that usually accompanies today's air travel).




A man in his twenties was led off the plane by authorities aiming guns at him and he was searched and detained.  The bomb sniffing dogs came out to do their thing and everyone was on high alert.



So what caused this chaos, confusion and alarm?  Turns out a guy in Philly was offended when his girlfriend's ex-boyfriend posted an "incriminating" picture of her on Facebook.  So, unlike most people who would (1) ignore it; (2) report it to Facebook as offensive to get it taken down; (3) report it to the police as harassment, this guy called the Philadelphia airport and said that the ex-boyfriend got on a plane with explosives.  Obviously, in today's climate of fear of what terrorists can do on planes, this put everyone on high alert and cost everyone who was touched by it a significant amount of time and money.  The prank caller?  He ended up in U.S. District court in a prison jumpsuit and shackles- facing charges that could result in up to ten years in prison, a $250,000 fine and payment of restitution for the havoc he caused.

The offending picture that started it all?  Well I am not sure if all of this foolishness even resulted in the picture being taken down -- after all --- when you are hauled off a plane by armed guards, you do not have the liberty of updating your Facebook account.  Additionally, the picture incident would have gone unnoticed by virtually the whole world until the telephone prankster made it the subject of television and newspaper news reports and a salacious scandal splashed across the internet.

Revenge is rarely a good idea.  In this case, it turned into a federal incident.  I bet the defendant is wishing he would have ignored the picture or taken a less juvenile path to a resolution.

Saturday, September 08, 2012

Inspiration on a Saturday

"The one thing children wear out faster than shoes is parents."

 - John J. Plomp

Friday, September 07, 2012

Supervised Visitation Resources

In the heat of custody battles, parents sometimes claim that the other parent must be "supervised" during custody periods with the children.  Reasons range from alleged general ineptitude to more serious charges of abuse, neglect, or substance abuse.  Courts usually reserve an order of supervised visitation for cases where the judge believes the child would be in danger if left unsupervised with the offending parent but that the parent should nevertheless continue to have contact with the child.  Accordingly, this drastic remedy is reserved for only a small fraction of cases.  So, you may think that the other parent must be supervised --- but the Court might not agree.

Not every county has the resources, personnel and appropriate space for supervised visitation.  Philadelphia has a supervised visitation facility available at 1801 Vine Street, open on Sundays at specific times.  The center enforces strict rules.  If the hours at the Philadelphia center are not convenient or you do not live in Philadelphia, other counties around the state offer an array of options -- some of which can be quite expensive.  This website keeps a list but always call and make sure the center is still in operation -- with budget cuts some centers are forced to close or reduce their hours.

A musical break from the law

One of my best friends manages musicians -- and one of his recording artists has an album coming out soon.  Here is the video of one of the singles from Tristan Prettyman's upcoming record.  For more information, visit www.tristanprettyman.com:






She's a west coast gal but her manager is from Philly so show this video, and the upcoming record, some brotherly love!

Thursday, September 06, 2012

Convenient calculators

Ever wonder what your mortgage payment would be if you buy a more expensive house?  Are you trying to figure out if it is worth it to pay off those credit card balances?  How about figuring out how much you will need to retire?

Bankrate.com includes a variety of free calculators on their website to assist you with calculating mortgages, car loans, credit card payments, retirement, savings and all types of other financial planning.

Remember - these types of calculators give you estimates -- and if you input incorrect information -- you will obtain incorrect results.  However, if you are planning, budgeting and trying to pay down debt, the Bankrate calculators are a great place to start.



Wednesday, September 05, 2012

I am taking this to the Supreme Court!

Litigants often vow to take cases all of the way to the Supreme Court but it is often not possible.  The Supreme Court of the United States only hears a limited number of cases --- and rarely issues of family law.  During the last court term, however, the U.S. Supreme Court decided a family law issue addressing whether or not children conceived after the death of their father would be eligible for Social Security Survivor benefits.

Karen Capato gave birth to twins eighteen months after their father, her husband, had died of cancer.  She conceived through artificial insemination using frozen sprem.  Karen applied for Social Security Survivors benefits for the children because their father was deceased.  The Social Security Administration denied the claim and the District Court affirmed.

Why did the Social Security Administration deny benefits?  The children's father, who had been a wage earner, was now dead.  However, pursuant to the law, the children could only receive their Social Security Survivor benefits if they could also inherit under the state intestacy law.  (An intestacy law dictates what happens to a person's assets if they die without a will.)  Under Florida state law, a posthumously conceived child cannot inherit from a parent via intestate succession.  Thus these children, born eighteen months after their father's death, would not qualify for Social Security Survivor benefits.  Read the full opinion for a complete analysis:  Astrue, Commissioner of Social Security v. Capato, decided May 21, 2012.

Tuesday, September 04, 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.


Tips for Separating Parents

If you and the other parent of your child separate, realize that you must do everything possible to focus on your children. The process often devastates children so shower them with love and attention in an effort to make the transition less traumatic for them.

1. Although you may frequently be tempted to do so, never speak ill of the other parent. Your children are “part mom” and “part dad” so criticizing the other parent criticizes your child, and could result in feelings of guilt (because they love that parent) or low self-esteem (because they feel you are criticizing a part of them).

2. Your child is not a personal post office. Do not use them as a messenger. Nothing puts them squarely in the middle of the conflict as using them as a delivery service. Communicate with the other parent in private and do not involve your children or allow them to overhear.

3. Reassure your children that you love them and that the divorce results from a decision of the parents that has nothing to do with the children. Many children assume that they are to blame for their parent’s hostility.

4. Encourage your children’s relationship with the other parent. Courts look to see which parent demonstrates more cooperation when fashioning a custody award.

5. Remind yourself constantly that your children’s interests - not yours - are paramount, and act accordingly. This means that your children and what’s important to them come before you, your job, your new paramour and your hate for the other parent.

6. If your children see you upset and hurting, they could be tempted to act as your caretaker. Do not let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you suspect or even fleetingly think that you drink too much alcohol, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time. Additionally, a minor problem could develop into something major if you do not keep it in check.

8. Live up to your financial obligations. No matter what, your children will most likely feel the economic pinch. Be as honest and reasonable as possible regarding any budget restrictions but do not blame the other parent.

9. Stability in their residence and school life helps buffer children from the trauma of their parents’ divorce. Much about your children’s lives will change. Make their lives as stable and routine as you possibly can. If you are leaving the residence you shared, stay as geographically close as possible so that they have an easy commute. Do not make them travel to see you, if you can avoid it. Make sure their commute to school from your house does not burden them by being too long.

10. Sometimes, despite your best efforts, children may become involved in the litigation. A custody evaluator or judge could interview them as part of the proceedings. Realize that this process terrifies them. Children can be unpredictable in what they tell judges or evaluators. Do not assume a child will take your side. Overwhelmingly, children do their best to be loyal to both parents.

Sometimes, you may feel as if you are following every piece of advice on this list and the other parent does the exact opposite. Do not stoop to their level. Be the bigger person - your children will benefit.

Monday, September 03, 2012

Enjoy your Labor Day

Law Offices of Linda A. Kerns,  LLC is closed for Labor Day.  You may leave a message or send an email and it will be returned on Tuesday.

Enjoy your Labor Day.  We hope it is filled with fun, rest, leisure, picnics, swimming, games, family and friends.