Main Line Pennsylvania Family Law Blog

cell-phone-01-1238771or but he said it and I have it on recorded my cell phone

With the ubiquitous use of smartphones, tablets, and other devices, the ability for the average person to secretly record conversations, take video, read text messages, and emails of other persons is widespread. The desire to take advantage of such technology is especially tempting when one believes he/she may obtain evidence that will give advantage in a divorce or a contested custody fight. However, Pennsylvania, has one of the most restrictive Wiretap and Electronic Surveillance* laws in the nation, and engaging in such activity can have wide ranging consequences.

The underlying question that comes up such situations is whether the activity infringes upon a right of a privacy. The test is two pronged: Whether the person whose communication sought to be used has (or had ) a reasonable expectation of privacy in the place or thing searched, and whether that expectation of privacy is one that society recognizes as reasonable.

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As a result of the Jerry Sandusky /Penn State child abuse scandal on July 1, 2015, a new law, Persons Required to Report Suspected Child Abuse, 23 Pa.C.S.A.§ 6311, went into effect in Pennsylvania. Its’ impact is widespread. Parent volunteers in schools and others who come into close contact with children now may be required to obtain child abuse clearances before school districts or other organizations permit contact with students. Clearances must be obtained from the state police, and if the volunteer is not a Pennsylvania resident for 10 years he/she must be cleared by the FBI. For many parents volunteering in their children’s schools, chaperoning trips or coaching little league and soccer is a rite of passage. Since the law is relatively new, it has taken many by surprise. Some are annoyed by the bureaucratic paperwork requirements, quite a few are confused, and others simply are reducing their community involvement. Some background perhaps puts the motivation and need for this change in perspective.

Enhanced mandatory child abuse reporting harkens back to the spring of 2008, when the mother of a 15 year old high school freshman reported to the principal that her son had been sexually assaulted. The perpetrator was a prominent retired football coach and local philanthropist whom the student met through a charity organized by the coach to help children from disadvantaged families. The school principal, mandated by state law to report child abuse allegations, referred the student to the county Children and Youth Services department. The matter was investigated by a young social worker unfamiliar with renowned Penn State football coach Jerry Sandusky. She reported the results of her interview with the student to the Pennsylvania State Police. Ultimately the matter was referred to the Attorney General’s office, which obtained a grand jury indictment of the coach.

In 2011, Sandusky was arrested and charged with 40 criminal counts involving at least 7 victims over many years. In 2012, Sandusky was convicted of child sex abuse and is serving a 30 to 60 year sentence. In the process, storied football Coach Joe Paterno’s reputation and legacy were tarnished and Penn State University officials still face trial on perjury charges stemming from their failure to report suspected abuse to authorities.

Among the facts that came to light during the investigation and trial was the number of people who observed disturbing interactions between Sandusky and young boys, but did not tell anyone. Or if reports were made reports to superiors, the supervisors took no action to notify the police or social services agencies who would have investigated and perhaps spared others from abuse.

In the aftermath of the scandal, the Pennsylvania legislature amended the provisions of the state’s child protection statute by requiring more people to report to independent investigative agencies and by making it easier to make reports on the phone or on-line. The new law expands the list of people who are mandatory reporters, i.e. those who must report information they come to know about suspected child abuse. There are now fourteen (14) categories of mandated reporters, which include all school employees including those at public and private community colleges and K-12 schools, all staff at child care centers, police, clergy, EMTs, employees of medical facilities, librarians and volunteers who are regularly in contact with children in youth sports, church groups, scouts, dance classes, clubs and community groups.

A report is mandatory if you have reasonable cause to suspect that a child is the victim of abuse by coming in contact with the student, or if someone reports to you that a specific child is the victim of abuse or if someone 14 or older admits to you that he/she has committed child abuse. The victim does not have to come to the reporter and it is not necessary that the reporter know the identity of the perpetrator of the abuse. Once the report, which can be anonymous, is made to the state’s CHILDLINE hotline phone number it will be directed to an appropriate child welfare or police agency for investigation. The oral report should be followed within 24 hours by an electronic filing but the failure to file the electronic report does not alleviate the duty agencies of the duty to investigate.

If you have a volunteer position where you come into contact with children on a regular basis, check to determine if your school district or community organization requires you to obtain child abuse clearances. Be advised that participating in proximity to students/ children/ young adults on a regular basis may impose on you a duty to report suspected child abuse.

Or whose money is this anyway?

Usually the two largest assets for most families are their retirement savings and their home. As more people opt to leave unhappy marriages later in life, understanding the ins and outs of retirement benefits and planning for retirement in divorce is essential.

Life Expectancy
People generally are living longer after retirement. This new longevity is a double edged sword –especially for the baby boom generation, who may not have planned adequately for either retirement or divorce. The good news is that life expectancy is increasing. A man who retires at age 65 on average can expect to live another 20 years; and a woman on average can expect to live another 23 years. The bad news is that those folks who live longer will need a greater cushion to make sure they do not run out of money in their retirement years. Safety nets such as social security and medicare are designed to provide financial assistance in later life. But the reality is that social security income alone, may not be sufficient for most people.

What Kind of Retirement Plan Do You Have?
If you do not know what kind of retirement plan you or your spouse has, now is a good time to educate yourself. There are a number of different plans and types of plans available. They are simply outlined here as follows:
A Defined Benefit Plan, is where the employer has made contributions over the course of employment, and a specific amount will be provided in retirement. The more common name for this is a Pension. The pension plan is a dying benefit, and reliable pensions have been all but eliminated from most private workplaces today.
Qualified Retirement Plans also known as Defined Contribution plans- The most common of these are 401ks, profit sharing plans, and Keogh plans; The employer makes contributions, but there is no guaranteed or regular annuity type payout.
Non- Qualified plans – these consist of IRAs, SEP IRAs, and executive benefits compensation plans. Contributions to these plans are made by individuals and small business owners with annual contributions up to IRS limits.

What Happens to Your or Your Spouse’s Retirement if You Divorce?
Contributions made to a retirement plan by the employee (and employer) during the course of the marriage and before separation are considered marital property. Growth on the funds during separation also is considered marital property. Contributions made before marriage are excluded from marital property as are contributions made after separation. If you and/or your spouse worked during some portion of your marriage, you are likely to have retirement funds subject to equitable division. How the funds get split has important economic implications for both parties. While a straight down the middle division (or some percentage proportionate split) may seem obvious and like a good idea, it might not be the most tax efficient, nor the most equitable resolution. Choosing whether to keep or split retirement funds can be a complicated decision. Some funds can “rolled over” to a spouse; others may require a court order, known as a Qualified Domestic Relations Order (QDRO). There may be tax penalties also if you roll funds from a qualified plan into a non-qualified plan. Depending upon age, or some other circumstance, a party may wish to have liquid assets “up front” and may wish to exchange a proportion of retirement assets for other assets.

Seek Out Advice
Division of retirement assets and divorce can be somewhat complex. If you are contemplating a divorce, or currently are in the midst of asset division, we recommend that you seek advice from your attorney, tax consultant or financial advisor before deciding what to do with retirement funds. The decision may have implications for the next 30 or 40 years.

For additional information, feel free to call us at 484 431 3959

Keep your eye on the full picture

it is essential to know what financial resources will be yours after divorce. When calculating your full financial picture be sure to consider social security benefits–your own or those of your ex-spouse. Yes, even if divorced, you may be entitled to claim social security retirement or disability benefits based upon the earnings of your ex. If you were the lower wage earner, you probably are entitled to claim on your former spouse’s earnings record. And, you also may have a right to collect a social security survivor benefit of your former spouse. The rules vary, but one essential key to the right to collect in both scenarios is that your marriage lasted ten (10) years or longer.

Social Security Retirement Benefit
To collect on the regular benefits, you must be age 62 or older and unmarried. If you remarry, you lose this benefit, unless your re-marriage ends. If the second marriage lasts more than ten years, you can choose which benefits you may wish to receive. To evaluate what is best, review whether what you would receive from your own work record is less than that what you would receive based on your spouse’s work record. The benefit you collect generally will be 50% of your ex-spouse’s benefit. (Your collections will not affect the amount your ex will receive.) The exact amount you receive will be determined upon the age you are when you choose to receive the benefit . Your former spouse must be eligible for benefits, which means he/she must be at least 62, for you to begin collections.

In some cases if you are the higher wage earner you may postpone taking your retirement, and choose to collect on the benefit of your spouse. For example, say you are the husband of a 25 year marriage who does not need a full benefit, you could choose at age 66 (full retirement age) to collect on your 62 year old wife’s benefit. So long as you are unmarried, in this scenario you can delay taking your benefit until you are 70, and reap a larger personal benefit.

Social Security Survivor Benefit
if your ex spouse dies, you may be eligible to collect a survivor benefit the same as a widow or widower so long as you have not re- married before you are age 60. Again, the amount you receive will depend upon your age when you begin receiving the benefit.

In both cases, it does not matter if your ex has remarried.

The Social Security Administration provides a complete discussion of eligibility and rules regarding collection of social security benefits on their website at . We are happy to help you plan for your future and discuss this information in greater detail with you.

Partial Physical Custody and Proactive Contact

Divorce is a challenging event in the life of a family. Children and parents see and experience divorce differently. While parents are coping with the emotional, psychological and financial disruption they may be experiencing, children, no matter their ages and emotional maturity, experience disruption and confusion. As everyone navigates new territory, children look to their parents for guidance and security as they process the often conflicting feelings they experience.

In every divorce involving children, legal and physical custody is established based on the best interests of the children. More often than not, parents retain joint legal custody and have an equal interest and voice in medical, educational and religious decisions. While a growing number of families successfully share physical custody, most parenting plans still involve primary and partial custody in some form.

If a child or children live primarily with one parent it is harder for the non-primary custodial parent to be involved in the daily routines. Many but not exclusively fathers, complain that their children’s other parent is not sharing information with them about what is going on in the children’s lives. If the parents still are moving through the often emotionally charged negotiations involving property and finances, continuing to rely on one parent to keep the other informed is not only unworkable, it is probably unreasonable. If Mom is the primary custodial parent, Dads who are used to being part of the children’s daily home life, may feel they are sitting it out on the bench. Instead of waiting for custodial time to get in the game with your children, partial custodians should take on more of the legwork themselves. To stay engaged and participate actively, we recommend the following proactive steps:

1. Put the custody schedule on Google calendar or some other password protected application, which enables both parents to post events and important dates involving their children. Fill in sports practices and games, birthday parties, religious school activities, medical appointments, conferences and the like. As children reach middle school and high school, they can give you details directly and the most computer literate can add them directly to the calendar.

2. Stay in touch with your children when they are not with you. Email, texting (for older kids with phones), FaceTime or Skype expand the opportunities for contact no matter the distance or time apart. Contact should be regular, even if not every day. A simple hello text to a teenager may be all you can do but it conveys that you are thinking of your child. However, do not use these tools to inhibit your children from enjoying their time with their friends or other parent. You too want to have time without persistent interruptions.

3. Provide your children’s schools, medical providers, coaches, troop leaders and friend’s parents with your contact information. Chaperone activities when your schedule permits. Going on a field trip or helping to time swim meets when it’s not your scheduled time demonstrates your commitment to your children. Be a booster for your children’s schools and teams, buy wrapping paper or cookies or popcorn if your kids are selling them and you can afford it.

4. Stay in touch with your children’s teachers and the school guidance counselor. For routine matters, email or phone messages can often be exchanged. Ask to be copied on progress reports, report cards and any correspondence from the school. Arrange to be at meetings for any special needs your children have, even if the other parent will be there. You will get information firsthand and have your questions answered.

5. Attend performances, games recitals and other activities in which your children participate. Tell your children you want to attend and let them see you at the event. Take pictures where appropriate. Refrain from bringing a date unless your children know and like the person. To do otherwise will unnecessarily upset their other parent and in turn cause the children distress.

Being a parent is a full-time job, even when you have partial physical custody. Remember that while you are making the effort for them, it is unlikely that your children will thank you for being present because they are too busy just being kids. Enabling them to enjoy their activities and not worry about their parents skirmishing will help them feel secure and still connected even when you are apart. For that they may thank you later.

Yes, it’s frightening to contemplate shaking up your comfortable life in your fortys, fifties or sixties, but it is happening with greater frequency these days. The US Census American Community Survey shows the rate of divorce among the 50- 60 year old population is increasing. href=” The reasons for this increase need further study, but perhaps as we live longer and healthier lives, we are demanding more fulfillment from our later years. The realization that a sour marriage is not the place for us to achieve this fulfillment may come with a sense of questioning, disappointment, sadness, embarrassment, dread, or even fear. It is important to acknowledge and work through those feelings. And, if the marriage cannot be saved, it is equally important to realize that there are a host of positive new feelings that will come with closure.

Middle age divorce presents its challenges as well as promises. Surely, there will be upheaval. There is the prospect moving or of living alone, something some people may never have done. You may have to leave the comfort of your established marital home, or the community in which you raised a family. There may be financial set-back as you divide assets. However, with these challenges also is opportunity. The community that you love may no longer suit your needs, you may have outgrown it, but without a catalyst you would not move. Divorce can provide just the motivation to branch out, perhaps move from the suburbs to the city. Or it may motivate you to downsize to a more manageable home, allowing you more time to spend on yourself.

Today, more and more people are living alone, and enjoying the independence and privacy it permits. The latest US Population Survey finds that in the 55-64 age group individuals living alone increased from 13 to 23 percent.–surpassing those age 75 and older. The changes discussed here do not mean isolation or losing the old friends, but rather an opportunity to branch out and find new friends –even lovers– who may enhance your life in all sorts of different ways.

A stagnant marriage in middle age also may signify a staleness in other aspects of your life. The work to keep the marriage together may have sapped energy from other pursuits, and stymied your personal growth. Once vibrant and promising in your twenties or thirties, you may not recognize yourself today. If you allow yourself to shed the clothes of a feigned domestic happiness under which you were hiding, who knows who you may find underneath. As you view your middle age divorce as opportunity, worlds of new adventures may await you. Doors will open that previously you never knew existed. It is important to stay positive, remember why you are making this change, and know that there are many resources out there for people just like you.

If you wish to learn more about the challenges and opportunities of middle age divorce, please give us a call.

Do we need lawyers if we are doing mediation? Isn’t that redundant? Tihis is a question we are asked frequently.

Or sometimes our office receives calls, where a party asks will the Mediator answer our legal questions? This question belies a fundamental misunderstanding of the mediation process. In mediation, parties can come to any agreement they wish , regardless of what the law might require or impose in a certain situation.

Unfortunately, myths and misconceptions about mediation exist. While most people generally understand that mediation is a collaborative process between the parties, few truly grasp how self-directed the process is.

Oftentimes couples think Let’s do mediation because
– it is less costly;
– it is quicker; and,
– we get along so well, we don’t need lawyers.

While, it is true that mediation usually is less costly, and quicker, it is not true that parties do not need lawyers. In our mediations, we recommend that the parties engage independent counsel who serve in the background as needed to answer questions , and review or draft documents.

Again, clients may ask, isn’t this un-necessary? Doesn’t having iawyers defeat the purpose of mediation? Now we have 3 people involved, instead of just 2 lawyers. Our answer is NO. We find having lawyers in the background smooths the process and keeps the Mediation moving forward, and thus, keeps costs down.

We believe the role of the mediator is to facilitate the conversation between the parties. The Mediator can raise issues that need to be addressed that the parties may not have considered. The Mediator can subtly move the parties toward workable resolutions that have a greater degree of success because the parties (not the lawyers) have come up with solutions. To do this, the Mediator needs to remain neutral – favoring neither party, and showing partiality to no result. If one or both parties get stuck on “legalities” they always can go to their lawyers for advice. They key is to return to Mediation with the legal “answer,” which they may choose to follow, or not. Neither party, however, feels betrayed or favored by any legal advice or answer provided by the Mediator.

Mediation is an excellent option for couples who do not need, or wish, to be constricted by what the “law says.” It is optimal for couples who desire to take control of their situation and work matters out in an amicable fashion. We find mediation works especially well with couples who have relatively equal power in the relationship, who are motivated to engage in the process, and who are equally desirous of reaching a resolution. With such parties, some of this things that can be mediated are:

working out custody for the children;
negotiating an interim support agreement,
payment of legal fees; or determining all aspects of property settlement and full and final divorce,

If you think you are a good candidate for mediation, call us to discuss your situation. We are happy to help you evaluate if mediation is right for you.

Like anything else in life, things usually go better when we prepare for them. Not everyone can prepare for a divorce, sometimes it just comes at us when we least expect it. But if a divorce is something you are contemplating, taking the time to prepare for a divorce, and thinking about how to broach the subject with your spouse can have real benefits.

Understand your finances-
It may seem crude, but finances are a reality that must be considered when contemplating a divorce. You are breaking up not just an emotional partnership, but a financial partnership, as well. Thus it is essential to be knowledgeable about the assets and liabilities of your marital partnership. Gather your financial papers; make copies of recent bank statements, investment accounts, retirement fund statements, credit card statements and other important documents. Get a handle on the monthly living costs are for you and your family.

Consult with an Attorney –
It is wise to consult with an attorney to learn what the divorce, property division, and ,if relevant, child support and child custody laws, are in your state. Having this information may help you decide if divorce is the right thing for you at this time in your life. An attorney also may help guide you about things such as how to think about divorce, inform you about laws that may guide decisions about timing to file for a divorce or support. An attorney also can refer you to other professionals such as a divorce advisor, or divorce financial planner, who can help you make critical decisions.

Schedule a time to meet with your spouse –
Invite your spouse to meet with you at a neutral, quiet and public place. It is better not to meet at home, since for each of you the moment of the talk will be difficult and it is better to limit emotional attachments. One of you may end up living in the family home, and it is better not to have the reminder of “this is the room where he/she told me…”

Plan for the immediate future –
Think about whether you will be moving out of the marital home after you tell your spouse that you want a divorce. , It may be helpful to have a temporary place lined up. If there are children involved, plan for your children. Do not have your children present when you tell your spouse. Your children should be told separately (see blog entry on Talking to the Children) Always it is preferable whenever possible for the two of you to work out custody between yourselves in an amicable way rather than have the Court determine custody.
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Pennsylvania Court Rules that Schools Must Provide Transportation to Homes of Both Parents

When separated or divorced parents enter into a child custody arrangement, numerous issues may be addressed. The terms of a particular arrangement may dictate which parent’s home is the child’s primary residence. This designation may impact other issues. A matter that often can get overlooked is the school transportation for children living within the agreed-upon arrangement. Until recently the designation of one home as primary, even in cases of shared custody, could lead to issues regarding parent’s rights to receive transportation to school for their children. This could create unwanted litigation and expense, as exemplified in the recent case of Watts v. Manheim Township School District, No. 935 C.D. 2013.
sc.jpg In the Watts case, a father (Watts) and his ex-wife shared equally-divided legal and physical custody of their child, C.W., who spent alternating weeks with each parent. Both parents resided within Manheim Township School District, where C.W. attended middle school, but their homes were located on different school bus routes. In accordance with a new district policy aimed at reducing expenses, the school informed Watts that, while it would continue to provide transportation for C.W. to and from his mother’s house, it would no longer transport C.W. between Watts’s home and the middle school. Despite the fact that a bus with unassigned seats could accommodate C.W. without adding an extra stop, Watts had to hire someone to transport C.W. to and from school when CW was living with in the custody of his father.
The father, in an attempt to have the bussing services to his home restored, contacted the school and eventually filed a petition with the court. The case reached the Commonwealth Court and the central issue was whether a student is entitled to transportation services to and from two different residences within the same school district. The school district argued that the Public School Code, dealing with school transportation, required merely that the district provide transportation to a resident pupil, which the district said it had done. Watts, conversely, asserted that the School Code required the school to transport a student to and from that student’s legal residence and, if the student had two legal residences, the school had to provide transportation to both. Moreover, because the Commonwealth Court had recently recognized that a student in an equally-split shared custody can have two legal residences, Watts contended that the school district’s refusal to transport to both residences violated the Code.
The Commonwealth Court agreed with the father, finding that the school district had a duty to provide transportation accommodating both of C.W.’s legal residences. Thus, in situations where both parents live in the school district, the student is subject to equally-divided legal and physical custody, and a bus has available seats and could accommodate the student with no added stop nor expense, the district was required to provide transportation between both parents’ homes.
Generally speaking, parents in shared-custody arrangements must determine not only how to arrange for transportation from parent to parent, but also how children will be transported between each home and school. Although the Watts case provides for a favorable result where parents have equally-divided custody, the situation can become more problematic when parents do not have equally-divided custody. Where custody is not equal (and the child has just one primary residence), the school may be obligated to provide transportation only to and from the home of the child’s primary residence. This would leave the other parent without a clear way to transport the child to and from school during their custodial period.
The Watts case dealt with just one of the complications that can arise in the area of school transportation, but school transportation issues have important, real-life implications for many shared-custody families. Many parents reading this may be facing a similar issue, while others may be able to account for this now in order to avoid having to deal with such a problem in the future. Although the foremost concern in such matters always must be the best interests of the child, each parent must consider how to meet these needs while also accounting for their own time and budgetary concerns. Going forward, parents would be wise to try and reach a solution that works for each of them. Considering school transportation issues and being able to spot problems before they arise should be helpful when drafting a custody agreements

Consult with your attorney about other issues to consider when working out custody arrangements.

The Odds are Evened Between Parents

The standard for determining child custody is what is in the best interests of the child. However, before Pennsylvania enacted a major change to its’ custody statute, which can be found at 23 PA C.S. A. section 5328, how best interests was determined could vary significantly from one county to another or from one judge to another. The enactment of the Custody Guidelines was a legislative attempt to provide a gender neutral, fact specific, roadmap for custody court judges.

Under the Pennsylvania Child Custody Guidelines there are 15 factors that a court must consider when it is asked to determine the custodial status of a child. (for a discussion on custody status generally see blog post Child Custody 101). Under recent caselaw it is clear that trial courts must evaluate each factor individually, and weigh it in the context of all the facts before ruling on custody.

The factors that must be considered under Section 5328 are listed below. A court should evaluate the facts raised by the question and try to determine if the answer balances the scales in favor of

Father – Mother – or Both parents equally
1. Which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent?

2. Was /Is there present and past abuse committed by a parent or a member of a parent’s household? If so, is there a continued risk of harm to the child[ren]. Which parent can provide better physical safeguards and supervision?

3. Which parent has/does perform the “parental duties” on behalf of the child?

4. Who can provide stability and continuity in the child’s education, family and community life?

5. Is there extended family available? If this is a factor, the Court should look contacts with siblings, grandparents, uncles, aunts, cousins etc. on both sides.

6. Are there sibling relationships, and how might they be affected?

7. Does the child have a preference? As children get older their desires can be taken into account by a Court. A well-reasoned, intelligent preference on the part of a child will be given weight, although is not a controlling factor.

8. Has a parent attempted to turn the child against the other parent? Except in cases of domestic abuse, where reasonable safety measures are necessary to protect a child from harm, Courts closely evaluate attempts to alienate a child from another parent.

9. Which parent 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 and special needs of the child?

11. How far apart do the parents reside from one another? What is the travel time?

12. What is each party’s availability to care for the child or make appropriate child care arrangements?

13. Is there a willingness and ability of the parents to cooperate with one another? What is the level of conflict between the parents?

14. Is there a history of drug or alcohol abuse by a parent or a member of a parent’s household?

15. Is there any issue with the mental or physical condition of a parent or a member of a parent’s household?

16. Are there any other factors that are relevant that a court should consider that are not part of the questions above?

Knowing that these are the guidelines that a court must use to determine custody might help some families work out custody arrangements without court involvement. Parents always know their children better than judges. If parents’ can be truthful with themselves about the answers to these questions, these guidelines might help them work out informal, agreed or stipulated child custody arrangements put the best interests of the child[ren] first. If a contested custody case should go to Court parents know what the Court wants to hear. The Guidelines are available to help parents be well-prepared on all the points. The Guidelines also can provide assurance to parents that they will receive a ruling that takes all the relevant factors into consideration. With these 16 factors as the context, neither parent comes to court with a presumption or an edge. The facts speak for themselves and the odds of a biased or unfair ruling are evened significantly.