Under the PA filial responsibility statute, adult children are financially responsible for payment of their parents’ medical care and nursing home costs. This was recently decided in the case of Health Care and Retirement Corporation v. Pittas, a 2012 PA Superior Court case. See 23 Pa.C.S. § 4603.
However, there is a bill currently pending before the PA House Judiciary Committee which is looking to eliminate a child’s responsibility. See House Bill 242 of 2015.
A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, even in the absence of a biological connection, paternity may be established. Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. The Pennsylvania Supreme Court has held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family.
In the case of K.E.M. v. P.C.S., 38 A.3d 798 (Pa 2012), Appellant, mother of G.L.M., brought an action for support against Appellee, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity on the part of H.M.M. and paternity by estoppel. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support. In this case, H.M.M. submitted to a paternity test which ruled him out as the father, however, on appeal the court found it was in the child’s best interests to still recognize Apellant’s husband, H.M.M., as the father.
Alimony is support paid to an ex-spouse following the divorce decree. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. For example, if a party loses their employment or becomes disabled modification could be sought. An alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.
Generally, the length is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. However, the trend is to now consider the retirement ages of the parties when determining the appropriate duration of an alimony award. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length as they so agree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. In total, there are fourteen factors for a court to consider in awarding and/or modifying an alimony award. These factors can found at 23 Pa. C.S. Section 3701.
Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.
Procedurally, both parties must sign an affidavit of consent for a mutual consent divorce under Section 3301(c). For a divorce based on two year separation under 3301(d), one of the parties must file an affidavit of separation and then serve the other party with the filed affidavit as well as a counter-affidavit.
The counter-affidavit allows the other party to object to the date of separation or the assertion that the marriage is irretrievably broken. In addition, the counter-affidavit now also allows the other party to signal to the court the status of any economic claims pending. Specifically, a party can indicate if they wish to claim economic relief prior to finalization of the divorce, or if economic claims have been raised but not yet resolved. The right to claim economic relief incident to the marriage relationship is lost once a final divorce decree is entered. The counter-affidavit alerts the parties of the necessity of filing timely claims as well as how they should be filed. If the counter-affidavit is not returned within 20 days the divorce may proceed based on the date presented in the 3301(d) affidavit. A hearing on economic claims can be requested if issues have been raised; otherwise, a divorce decree can be entered.
Section 3308 of the Divorce Code provides for an action in divorce where the defendant is suffering from a mental disorder. In practice, however, seeking a divorce where one of the parties is mentally incapacitated can raise unique issues. The Pennsylvania Rules of Civil Procedure discuss the steps that must be taken when one of the parties is incapacitated. An incapacitated person is defined as an “adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that the person is partially or totally unable to manage financial resources or to meet the essential requirements for physical health and safety.” Pa. R.C.P. 2051. If a person is determined to be incapacitated a guardian ad litem must be appointed to act on that party’s behalf.
If a party becomes incapacitated after a matter has commenced, the matter should be stayed pending appointment of a guardian. The court shall appoint a guardian if it ascertains that the Plaintiff is incapacitated. If a Defendant becomes incapacitated during the proceeding, the Plaintiff should petition for appointment of a guardian. Once a guardian is in place, the matter can proceed. The guardian is tasked with acting for the benefit of the incapacitated party as a fiduciary. A guardian can be replaced by motion of the other party or by the court.
On December 29, 2015, the Pennsylvania Supreme Court decided that a step-parent can be responsible for child support if that step-parent has taken aggressive legal steps to obtain the same custodial rights as a biological parent. A.S. v. I.S., No. 8 MAP 2015 (Pa. Dec. 9, 2015). The mere existence of a relationship between the step-parent and child and other reasonable acts to maintain a post-separation relationship with stepchildren remainsufficient to establish a duty to pay child support. Id. citing Commonwealth ex rel. McNutt v. McNutt, 344 Pa. Super. 321 (1985).
In A.S. v. I.S., Mother had twin sons in Serbia in 1998. In 2005, Mother married Stepfather and moved with the two children to Pennsylvania. Stepfather filed for divorce in 2010, and filed for custody of the children in 2012, seeking to prevent Mother’s relocation to California with the children. The trial court granted Stepfather’s emergency petition and prohibited Mother from relocating. The trial court found that Stepfather had put himself in a situation of a lawful parent by assuming the obligations of a parental relationship without going through the formality of legal adoption. The trial court entered a final custody order granting the parties shared legal and physical custody of the children.
A support master dismissed Mother’s support complaint because the Stepfather was not the biological father and, therefore, did not owe a duty to support the children. Mother filed exceptions to the master’s recommendation arguing that Stepfather should be treated as a biological parent for support purposes because he had sought and obtained legal and physical custodial rights as if he were a biological parent. The trial court affirmed the master’s dismissal of the support complaint and the Superior Court of Pennsylvania affirmed the trial court’s decision. Mother appealed to the Supreme Court of Pennsylvania on the issue of whether a step-parent who obtained equal custodial rights should be liable for child support and, if so, whether the support amount should be calculated based on the child support guidelines.
The Pennsylvania Supreme Court noted that the child support statute providing “parents are liable for the support of their children…” does not define “parent” or “child.” 23 Pa.C.S. §4321. However, other Pennsylvania cases have held that a “parent” for support purposes is not limited to biological or adoptive parents. Additionally, the Court cited to cases holding that a party may be prevented from denying his status as a father where he has held himself out as such. Id. citing Fish v. Behers, 559 Pa. 523 (1999); Hamilton v. Hamilton, 2002 Pa. Super. 72 (2002). When a step-parent commences litigation to achieve all the rights of parenthood at the cost of interfering with the rights of a fit parent, the same public policy is implicated: it is in the best interests of children to have stability and continuity in their parent-child relationships. “By holding a person such as stepfather liable for child support, we increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child’s life will take the steps to litigate and obtain rights equal to those of the child’s parent.” Id. at *19.
Ultimately, the Court found in this case that “when a step-parent takes affirmative legal steps to assume the same parental rights as a biological parent, the step-parent likewise assumes parental obligations, such as the payment of child support.” Id. at *1. The novelty of this decision could have far-reaching effects on child support obligations.
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