Articles Posted in Custody

TO MOVE OR NOT TO MOVE …

One of the more frequent questions that come up in our practice is whether a party can or should move out of the marital home before or during a divorce proceeding. The answer, unfortunately, is not a simple yes or no. And often it comes up after someone already has moved out!

Reasons why one might want to leave a marital home before or during a divorce are: physical and/or emotional abuse; infidelity; new employment; the emotional need to get away, etc.   The are equally compelling reasons to stay in the home during divorce proceedings   and perhaps live separately under the same roof, such as the financial considerations –savings offered by not having two residences, convenience; parental obligations or concerns about parenting. Each situation is different.      It is wise not to be impulsive about the decision of whether to leave or stay.   Consultation with an attorney is best, to learn fully what your rights and responsibilities are.   At a minimum there are certain items, which must be considered,

 Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions  may become an issue  if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child.   More and more courts are being asked to determine custody in these cases.   There are steps that couples can take to help avoid or minimize this intervention.   The  facts and result in a recent Pennsylvania case are instructive.

In the  case of C. G. v. J.H.,  J.H. conceived a child by artificial insemination.    C.G. and J.H. were not married and Florida (where they resided)  did not recognize same sex marriage at that time.   J.H. was the biological mother.   The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple.   C.G. and J.H. continued to live together for about five more years.   The relationship, however,  began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.”    Since C.G, was not the biological parent,  J.H. alleged that she did not have  “standing” to bring the matter at all.    Because the parties were not married at the time of conception, and because C.G. did not adopt the child,   the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.   iStock-517851326-300x220

As might be expected, the testimony conflicted.   Just as in a traditional custody case, the parties presented extensive evidence including  who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.”   Testimony including facts of  day-to-day life was considered by the judge, as were facts regarding  decision-making about the child’s medical and educational needs, child care, financial support and other items.
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The Republican Tax Bill  brings sweeping changes to the nation’s tax code.  As the country adjusts to the revisions and comes to understand the implications, we take some time to highlight the immediate impact this law will have on  families –both intact and those who are facing divorce.     Follow this blog for more details later.

Revisions in the tax code will affect:

           EDUCATION:   529 accounts are expanded to include private school and home schooling.

Currently families can save for children’s college education with the use of tax protected 529 accounts.  In a 529 account your money grows free of any capital gains taxes and  currently it can be withdrawn without any penalty to pay for higher education expenses.   Under the new bill,  the use for money in 529 accounts is expanded.  You  now will be able to withdraw up to $10,000.00 per child, per year,  to pay for private school or for educational expenses that are used for home schooling.   Money that is in a 529 account also may be rolled over to ABLE accounts, which are used for people with disabilities.

            ALIMONY: Alimony is no longer deductible for the payor spouse and no longer taxed to the recipient spouse.  

This  change in  the tax provision regarding alimony does not go into effect until 2019; however, parties in the midst of divorce must be aware of it now as it may have a significant effect on negotiations in equitable distribution agreements.   Understanding the effect of this dramatic change in the tax implications of alimony is important.   If you currently are receiving or paying alimony your agreement may be modified with certain specific language to comply with the new tax rule.  Your attorney should have access to the modification language. Continue reading

The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided.    Just recently, the Supreme Court  issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.

V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states.  Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption. Continue reading

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.

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 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.

Understanding the ins and outs of child custody can be overwhelming to one who never had to think about the concept before. Most of us think of our children as “our own,” and that is it. But if separation and divorce become part of a family story the legal and emotional issues raised by custody can be scary and daunting.

Who and what are our children? Are they property? Are they a part of ourselves? Are they separate precious individuals who we take care of temporarily? Are they all of the above? What happens if parents are in conflict over the children? What happens if grandparents get into the picture and want custody? The answers to these questions are not obvious, and may raise intricate legal issues. If child custody becomes contested, the process can become complex.

If a custody case does not settle and ends up in Court, parents may feel like they are in a foreign territory. When entering a foreign land, having a guidebook with some common phrases often is useful to help calm the nerves. Today’s blog is a short introduction to the types of child custody, including important definitions and concepts.

Under the revised Pennsylvania Child Custody Act, which took effect in January 2011, the rules for re-location 23 Pa C.S.A. 5337 are specific. Relocation requires the consent of both parties or judicial approval. The process requires the parent who wants to re-locate to provide written notice by certified mail to the other parent sixty (60) days before he/she intends to re-locate. The definition of “relocate” can mean more than a move out of state. It appears to have expanded to include any residence change that significantly may affect the non-relocating parent’s custodial rights.

The notice provided to the other parent must provide specific information including the new address of the re-locating parent, phone number, persons who will live at the new address, ages of who will be living there, information about the new school, the reason for the re-location and a schedule of visitation. It behooves the moving parent to do as much research into the new location as possible before filing a notice so that the notice is thoughtfully presented.

The other parent then has thirty (30) days within which to respond by counter-affidavit in writing to the notice. He/she can agree or oppose. If a parent opposes, a formal hearing will be held at which each party can present evidence, testimony and experts. If the non-relocating parent does not file a counter-affidavit within 30 days he/she is foreclosed from objecting to the relocation.

When a child lives in one state and a parent files for custody of that child in another state a question of jurisdiction over which state can hear the custody case arises. The Pennsylvania Supreme Court has ruled that in such situations the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) 23 Pa C.S.A. § 5401 applies.

So, for example, if Father lives in Pennsylvania and Mother lives in Maryland and Father files for custody of the child in Pennsylvania and Mother wants the case to be heard in Maryland, and asks the Pennsylvania court to defer jurisdiction to Maryland, how is the proper forum determined? In cases such as this, Pennsylvania will use the Uniform Child Custody Jurisdiction Enforcement Act or the UCCJEA.

Under the UCCJEA a Pennsylvania court will look to the child’s “home state” to determine jurisdiction. The child’s home state is determined by the place that the child resided for six months consecutively immediately preceding the filing of the custody action. The UCCJEA provides that “the state with the closest connections to, and the most evidence regarding a child should decide a child’s custody.” If the child is very young, or has moved around a lot, and has no home state, then the courts use other factors to determine home state. Among those other factors are significant contacts the Child has with the jurisdiction, such as family contacts, medical contacts, school, etc. The Court also may consider which jurisdiction is more convenient for the child.