Wednesday, August 21, 2013

What are my procedural due process rights during a PFA action?

In April 2013, the Pennsylvania Superior Court in Ferko-Fox v. Fox, 2257 MDA 2011 discussed a defendant’s procedural due process rights during a Protection from Abuse action.  Procedural due process is legal protection for a defendant, which helps to guarantee that a defendant’s civil rights are protected during litigation.
Under Pennsylvania law, when a person files a Protection From Abuse ("PFA") action against another individual, there should be an ex parte proceeding.  An ex parte proceeding occurs when one of the parties is not present.  In PFA cases, the defendant is typically the party that is not present.  In Ferko-Fox, the Husband/Defendant alleged that his procedural due process rights were violated when the court simply reviewed Wife/Plaintiff’s petition in camera (meaning viewed by the judge without a hearing) and then granted a Temporary PFA Order.  The Appellate Court agreed that Pennsylvania laws and procedural due process rights demand that a trial court cannot simply grant a Temporary PFA order based on the Plaintiff’s allegations in his or her petition, because a Temporary PFA order, even with its inherent temporary nature, restricts a defendant’s rights.  Instead, a trial court must conduct an ex parte hearing, because a hearing, even if the defendant is not present, provides the trial court with a vital opportunity to listen to the petitioner, make a character assessment and to assess the validity of the petitioner’s claims.  Practically speaking, some counties simply do not have sufficient resources to conduct a hearing for every Temporary PFA; therefore, it remains to be seen how this opinion will be carried out. 
If you are involved in a PFA, you should contact an attorney to discuss your rights and legal options.

Written by Elizabeth A. Bokermann, Esquire, associate attorney at The Law Offices of Linda A. Kerns, LLC.

Tuesday, August 20, 2013

Best Websites for Women

Forbes.com just published their annual The 100 Best Websites for Women.  Some interesting choices on the list, ranging from Mom blogs, career advice and entrepreneur how-tos.

Wonder why there is no list of the 100 best websites for Men?

Monday, August 19, 2013

Relocation in Pennsylvania: The Statutory Factors

The Pennsylvania Child Custody Statute provides specific factors to guide trial judges in determining whether one parent can relocate to another area and change the custody schedule.  While the statue lists the factors, the trial judge has the freedom to decide which factors are more important, and which factors are less important, in each individual case.

Courts must consider the statutory factors when considering a relocation petition.


The Superior Court (our appellate court) just affirmed (agreed with) the ruling of the trial court in Erie County, Pennsylvania denying a mother the opportunity to relocate from Erie County to Bucks County with her two young daughters, in the case of SJS v. MJS.  The parents separated after six years of marriage when the daughters were six and three years old.  Mother had primary custody but Father saw the children two days a week and every other weekend.  In addition, as both Mother's and Father's family resided in the Erie County area, they spent a great deal of time with both extended families.  Mother's proposed move would put 7 1/2 hours of driving distance between the girls and their father.

Relocation can mean that a parent misses certain milestones.

Mother met a boyfriend on the internet who lived in Bucks County, PA and was working on writing a novel.  The boyfriend supported himself from a family trust and the trial court seemed unimpressed, stating: He "is a privileged beneficiary of the wealth of his parents[.]... Quite simply, he has not grown up, nor does it appear that he is [in] any rush to do so." 

Internet affairs increase the risk of finding a paramour who is not geographically convenient.

The Superior Court agreed with the trial court in denying Mother's relocation, finding that she was putting her relationship with her boyfriend above the stability and best interests of her children, considering they were neither married nor engaged and she would be dependent upon him for support.  Additionally, the children would suffer great disruption in their lives, when everyone agreed they were happy, thriving and stable in Bucks County.  Additionally, and importantly, one of the children testified about how much she would miss her father.

Relocation petitions rely on the specific facts of each case and center on the best interests of the child.  Sometimes, a parent has an excellent job or educational opportunity or needs to be closer to family and friends.  The children's benefits will flow from the parent's better job or education or the availability of extended family.   Here, Mother could show no benefit to the children.  In fact, the evidence appeared to show that their situation would actually decline.  Thus, the court denied the relocation.  Read the full opinion for the court's reasoning.




Thursday, August 15, 2013

The Ins and Outs of Credit Reports

Oftentimes, a party to a divorce, custody or support proceeding, will be asked by his or her attorney to obtain a credit report. A credit report provides a useful guide to assess financial habits, i.e are most expenses financed or paid in full.  It can also potentially provide information about past arrests, filings of bankruptcy and other public records. Finally, it serves as a roadmap to debts and liabilities.  Remember, however, that you will still have to obtain evidence of the debt from the creditor.  In divorce proceedings, a listing of a debt on a credit report, without backup documentation, is usually not enough to prove a marital liability.  

For a number of reasons, it is important that the information in your credit report is accurate. If you are a party to a divorce, custody or support proceeding, inaccurate or incomplete information can lead to unjust or unfair results. Additionally, you could be denied credit, insurance or even a job, based on misinformation.

You can obtain a free copy of your credit report in two ways. One, every individual is entitled to a free credit report each year, which can be obtained from annualcreditreport.com. Two, if you have been denied credit because of information in your credit report, the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq) provides that the company which has denied credit must supply to you the name, address and telephone number of the credit reporting agency. You will then have sixty (60) days to contact the agency and receive a report for free. Outside of these two methods to obtain a free credit report, you can still obtain a credit report at any time for a small fee. The three major credit bureaus are Experian (www.experian.com), Equifax (www.equifax.com), and TransUnion (www.transunion.com). Notably, the credit reports obtained by paying a fee are often a bit more comprehensive than the free reports.

The Fair Credit Reporting Act provides procedure for disputing errors or inaccuracies within the credit report. If there are errors on the report, both the credit bureau and the company providing the information, for example the credit card company, have the responsibility of correcting inaccurate or incomplete information. If something is incorrect, your first step is to immediately contact both the bureau and the company which provided the incorrect information. The best way to contact these entities is in writing, explaining what you believe to be inaccurate. Keep copies of your correspondence. Also, you should provide copies of any documents supporting your position. Not only should you explain in your letter what is wrong and why, but you should also explain the changes you are requesting. Finally, your letter should be sent by certified mail, return receipt requested.



Under the Fair Credit Reporting Act, the bureau must investigate the situation within thirty (30) days unless they believe the dispute to be frivolous. They are also required to forward the relevant data you provided to the information provider, i.e. the credit card company. The information provider is then required to investigate and report findings back to the credit bureau.  If they fail to report back, the negative information is usually removed from your report.  Accordingly, you can sometimes have information removed simply because the creditor does not answer your correspondence.  If the information provider finds that the report does indeed contain inaccuracies, they are to report the change to all credit reporting bureaus, not just the one involved in the immediate dispute. Finally, the bureau must then give you a free credit report with the changed results. Once these changes are finalized, you may direct credit reporting agencies to resend notices or corrections to anyone who received your report within the last six months or any employers who received your report within the last two years.

If you have a dispute and the investigation by the bureau never resolves it, you may ask them to include your statement of dispute in your file for future requests of the report. In general, accurate negative information may stay on your credit report for up to seven years, while criminal activity and bankruptcy may appear for ten years.

As always, it is a good idea to consult with your attorney throughout the process of disputing information in your credit report so you know your rights and the correct steps you need to take with the agency to resolve the dispute.


Lisa Haggerty, Law Clerk, drafted this article and Linda A. Kerns, Esquire edited.


Tuesday, August 13, 2013

In New Jersey, just how long is a long term marriage?

While there is no law defining a long term marriage, an appellate court decision recently addressed the issue in Gnall v. Gnall.  While each case is extremely fact specific, this case provides some guidance on whether a marriage is long term or not.


Ten year marriage, 17 plus year divorce

Two law professors in Ohio have been litigating their divorce for 17 years . . . yet they were only married for ten.  Read about the case here and here.  The courts blame the litigants.  The litigants blame the courts.  The children, who are now 17 and 20, have never known anything other than parents in the midst of a divorce.  Shame and blame to everyone involved.



In NJ, can Mom (or Dad) unilaterally change the child's name?

In a recent case, decided by the New jersey Supreme Court, Mother began using a hyphenated name for the children after a divorce from Father.  At birth, the parents were married and named the children using Father's surname.

If parents jointly choose a name at birth, can one parent later unilaterally change that name?

After the parties divorce, Mother began registering the children for school using a hyphenated name of her surname and Father's surname.  When Father realized Mother was using a different name for the children, he objected and Mother filed a petition to change the children's name to her last name.  Father objected.

The case wound its way to the Supreme Court of New Jersey, which held:

The parent seeking to change the last name of a child which was jointly chosen by the parents at birth, bears the burden of proving by a preponderance of the evidence that the name change is in the child’s best interest. The court went on to note the irrelevancy of the parents' marital status at the birth and found that their is no presumption in favor of the custodial parent. 

Choose your child's name carefully at birth.

You can read the full case here:  Paul Emma v. Jessica Evans (A-112-11) (070071) decided August 12, 2013.

Monday, August 12, 2013

Mom and Dad do not want to live anywhere near each other!

What happens if one parent lives here, but the other parent wants to move far away?  What does the court consider in deciding what happens to the custody arrangement?

Pennsylvania statutory law requires that one parent must notify the other parent if he or she intends to move to another residence where it would have a major impact on the established custody arrangement or custody rights.  Even moving across town could be considered a relocation if the distance is enough to affect the ability to carry out the custody arrangements.  

On November 23, 2010, the Pennsylvania legislature enacted a new law for parents who wish to relocate. The effective date of the law was January 24, 2011 and the law was to apply to proceedings which commenced after the effective date.  All parents must follow the law and “not knowing about it” does not constitute a sufficient excuse.

What happens when one parent wants to needs or move?


 In E.D. v. M.P., 2011 PA Super 238, the father (“Father”) filed for relocation on January 25, 2011, one day after the effective date. The Superior Court had to decide whether this relocation petition was considered the “commencement” of a proceeding or simply a continuation of the custody arrangement proceeding that was previously resolved years ago. The Court decided based on legislative intent that relocation was indeed the commencement of a new proceeding. It reasoned that under the latter interpretation, “the old Act would continue to apply to all aspects of every custody action filed before January 24, 2011 and would continue to apply in those actions for many years into the future.” Likely, the Pennsylvania legislature did not intend this “absurd and unreasonable result.” Therefore, any parent wishing to relocate will be subject to the new law, regardless of when the original custody order was resolved.

The new relocation law changed the procedure of filing relocation and modification to custody with the court. Now, parents in Pennsylvania must first notify the other parent of his or her intent to relocate at least sixty days before the proposed relocation (§5337(c)). If the non-relocating parent objects to relocation, the relocating parent is required to file an objection with the court within thirty days of the receipt of the relocation notice (§5337(d)). If the non-relocating parent timely objects, then the court will schedule an expedited full hearing on the matter (§5337(g)). 




Factors Factors Factors
The court must consider the case in light of the factors in the statute.

In addition to these procedural changes, the new relocation law also reflects changes in the actual substance of the law. If parties have a relocation hearing, the judge must look to ten factors to decide if relocation is appropriate. The relocating parent has the burden of proof and must establish that relocation is in the best interest of the child. These ten factors, listed in §5337(h), are as follows: 

1. The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
2. The age, development stage, and needs of the child and the likely impact the relocation will have on the child’s physical, education and emotional development, taking into consideration any special needs of the child.
3. The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
4. The child’s preference, taking into consideration the age and maturity of the child.
5. Whether there is an established pattern of conduct of either party to promote or thwart the relationship with the child and the other party.
6. Whether relocation will enhance general quality of life for the party seeking relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
7. Whether relocation will enhance general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
8. The reasons and motivation of each party for seeking or opposing the relocation.
9. Present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
10. Any other factor affecting the best interest of the child.

A court must analyze these factors in light of the best interest of the child, which triggers an analysis of the sixteen best interests factors under the custody statute.  Some of those “best interest” factors repeat relocation factors.  Importantly, a court can give more or less weight to one factor or another, as long as the reasoning is provided.  

All of these facets of the relocation law are important to know for parents who wish to relocate and modify the current custody order. It takes many steps and an analysis of quite a few factors for both relocation and modification of custody. In short, it all comes down to what is in the best interest of the child, but obviously each parent has different opinions as to what is best for the child.  The court must sort through the conflicting opinions of the parents.  If you are considering relocation, it is helpful to consult with an attorney to digest the process and the factors that are measured in determining what is in the best interest of the child so that you can present your case to the court as comprehensively as possible.  Additionally, different counties, and sometimes even different judges within counties can have different procedural rules and requirements.  A competent, experienced lawyer can guide you through the process.


Lisa Haggerty, Law Clerk, drafted this article.  Linda A. Kerns, Esquire edited.

Friday, August 02, 2013

Hot off the Press - Changes to Custody Procedure in Pennsylvania

Effective September 3, 2013, the Supreme Court of Pennsylvania amended some of the Rules regarding Child Custody.  Read the new amendments here.