Protection From Abuse

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A PFA Order is a civil remedy to end abusive relationships. Remedies for a successful PFA petition can include having the Defendant removed from a residence that was previously shared, restrictions on contact for up to three (3) years, relinquishment of firearms or other weapons, reimbursement for related expenses or out of pocket costs suffered, temporary support, and in some cases, a custody schedule. It is possible to list multiple persons in need of protection under the PFA in one petition including children. A Protection from Abuse (PFA) petition requires the petitioner to identify the defendant, state the incidents constituting the “abuse” as well as any prior history of similar incidents, provide notice of any weapons involved, and set out the relief requested.

A PFA can only be filed if there is a relationship between the Petitioner and Defendant. Recognized relationships include spouse or former spouse, parent of child with Defendant, current or former sexual/intimate partner, child of Plaintiff or Defendant, family member related by blood or marriage, and sibling. Abuse, for purposes of obtaining a PFA, is defined as

physical violence or imminent threat thereof, stalking or any other course of conduct which would place a person in fear of bodily injury. The party pursuing a PFA order must establish by a preponderance of the evidence, or more likely than not, that some abuse occurred. Violations of a PFA may be criminal in nature depending on the nature of the violation. Criminal charges may also be pending simultaneously with a PFA petition.

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Prepare for Adoption

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If contemplating an adoption you can start the process by gathering the necessary paperwork that must be submitted to the court along with adoption petition. Exactly which documents you will need to include depend on what type of adoption you are seeking. All interested parties must be advised of the availability of ACT 101 and proof that all parties received information should be retained for presentation to the court. You will need to original birth certificate for the adoptee. Additionally, prospective parents and any other adult household members will need to have the requisite clearances completed where the adoptee is a minor and the results of those clearances should be attached to the petition. A home study may be required as well if there is no familial relationship between the adoptee and prospective parents.

In a situation where the adoptee is over twelve years old, you should also have the consent of the adoptee attached to your petition. If the natural parents consent to the adoption and are voluntarily terminating their parental rights, their consent(s) should be attached as well. In some circumstances parental rights do not need to be terminated. For example, if the natural parent has passed away you do not need to request their rights be terminated however you should include a certified copy of the death certificate with the petition. Another scenario may be if you have used an anonymous donor to conceive, that documentation should be included with your petition. You should consult with an experienced adoption attorney to be clear on exactly which documents you will need to include with your adoption petition to make the process as efficient as possible.

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Post-Adoption Contact

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It is possible to keep in touch with your child subsequent to the termination of your parental rights and their adoption if all parties to the action, i.e. natural parents/relatives and adoptive parents, mutually agree. Act 101, which became law in 2010, authorizes post-adoption contact by agreement of all the parties. Specifically, a birth relative by blood, marriage or adoption can contract with the new adoptive parents in terms of continued contact with the adoptee. In each adoption case, even if there is not any interest in post-adoption contact, all parties are required to be notified of the existence of Act 101 and option to enter a contract for continued contact. The parties should sign to acknowledge they received notice of the options available under Act 101 and their signed acknowledgment would then be filed with the court. If the parties do not sign an acknowledgement, then proof that they were served with the notice should be filed to the court. A sample of the Act 101 notice is included below.

      NOTICE REQUIRED BY ACT 101 of 2010

23 Pa. C.S. §2731-2742

 

This is to inform you of an important option that may be available to you under Pennsylvania law. Act 101 of 2010 allows for an enforceable voluntary agreement for continuing contact or communication following an adoption between an adoptive parent, a child, a birth parent and/or birth relative of the child, if all parties agree and voluntary agreement is approved by the Court. The agreement must be signed and approved by the Court to be legally binding.

A birth relative is defined only as a parent, grandparent, stepparent, sibling, uncle or aunt for the child’s birth family, whether the relationship is by blood, marriage or adoption.

This voluntary agreement may allow you to have continuing contact or communication, including, but not limited to:

Letters and/or emails

Photos and/or videos

Telephone calls and/or text messages; or

Supervised or unsupervised visits.

If you are interested in learning more about this option for a voluntary agreement, you contact your attorney.

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Guardianship Changes

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Guardianship of an incapacitated person refers to the authority to make decisions on behalf of an adult individual who has been adjudicated as such by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. The first step for a party interested in pursuing guardianship of someone is to file a petition with the court. At the time of filing the petition, the proposed guardian must now submit record of criminal background search from the Pennsylvania State Police. Additionally, if the incapacitated person suffers from mental health issues, a notice of mental health commitment form should be included.

The opinion of a medical expert regarding the extent of the incapacity and the potential necessity for a guardian is required. The Rules now provide for the expert to complete an expert report which may replace requirement of physical testimony in court. The Petitioner has the burden to prove incapacity by clear and convincing evidence. Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as family members.  By April M. Townsend

 

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Guardianship of a Minor Child

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A guardian can be appointed to make decisions on behalf of a minor child. Temporary guardianships can be put in place without a court hearing. The guardianship would transfer the authority to make decisions for a minor child from the existing parent/guardian to another person for a limited time. A written agreement is required to identify exactly what authority is being transferred under the guardianship. Ideally, the agreement should be notarized in addition to being signed by all parties. The parties need to be of sound mind when signing the agreement.

Temporary guardianships can be revoked at any time.  For this reason, it is important to work towards other legally enforceable means for retaining custody of the minor if that is the goal. Temporary guardianships can be used so that prospective adoptive parents can take care of the intended adoptee while the adoption hearing is pending. This would enable the adoptive parents to make any medical decisions, enroll the child for school, etc.  Once parental rights are terminated, custody of the child is put with the prospective adoptive parents by court order. Once an adoption is approved, the prospective parents have final custodial rights over the child just as if they were the natural parents.  By April M. Townsend

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Counseling for Natural Parents

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Natural parents can take advantage of court-sponsored counseling services when facing termination of their parental rights. Each county is responsible for keeping a list of qualified counselors who are available to assist natural parents contemplating voluntary relinquishment or facing involuntary termination of their parental rights. Prior to any adoption of a minor taking place, the rights of the natural parent(s) must be terminated. This is a permanent termination and accordingly, the courts take all necessary steps to ensure that the natural parents understand the gravity of the situation and have a chance to discuss with a qualified professional. A portion of the filing fees paid to the court for adoption/termination proceedings goes to support that county’s counseling fund and subsidize the costs for counseling where the natural parent(s) desire to participate but are unable to afford it.

It is the court’s responsibility to confirm whether the natural parent(s) had an opportunity to utilize counseling services if they appear at the termination hearing. If the natural(s) have not received any counseling, the court can postpone a decision on termination to allow the natural parent(s) an opportunity to seek counseling. If the natural parents are not present, the court at least requires proof of valid service of the proceedings to the parents. The required notice for termination hearings does make it clear that natural parents have a right to appear at the hearing but if they fail to do so their rights can be terminated by the court. The notice also informs natural parents of their right to seek an attorney and strongly advises that they do so.

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Child Support 101

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The amount of child support to be awarded in a case is based on statewide guidelines established by the state’s Supreme Court. The starting point for applying the guidelines is to identify the monthly income of the parents as well as the number of children in need of support. The guidelines are intended to ensure that similarly situated parties are treated similarly. Once the amount of support per the guidelines is identified, the amount is allocated between the parties based on their respective income as well as the custody schedule. The amount of support reflected in the guidelines is based on the average expenditures of children for food, housing, transportation and other necessary miscellaneous items.

Additional expenses for the children can be addressed as part of a child support award, such as cost of health insurance, daycare, private school tuition or camp. The amount of support dictated by the guidelines is presumed to be correct. There is not much room for argument as far as what amount of support is appropriate. The guidelines make financial support of children a top priority and the expectation is that other expenses will be adjusted to ensure the child support obligation can be met. Either party can initiate a complaint for child support to get a court order on the amount owed. Wage garnishment is the preferred method of collection for child support and the court will seek to have any support due taken directly from the pay check of the party paying support. Set up a consult with one of our experienced attorneys to better understand your obligations in child support.

 

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Right to Child Support

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Child support is paid between parents for the benefit of their children. It is up to the parents to timely file for support to get a support award established. They are also responsible for seeking any necessary modifications. Change in income of either party or a change in the custody schedule for the child can impact the amount of support owed. If you have requested support through the court, the court will assist in monitoring compliance with the order as well as petitions for contempt and enforcement for lack of compliance. If you have a private agreement for child support, you will need to keep track of payments and file for relief with the court if there is an issue.

While support is for the benefit of a child, the child cannot legally make any demands regarding support or seek to recoup payments. This issue has been previously addressed by the courts in Pennsylvania. In Chen v. Chen, 893 A.2d 87 (2006), parents had entered into a Propery Settlement Agreement with provisions for child support. Father had an obligation to notify of income changes that may warrant an increase in support but he never did. The parties’ daughter, once 18, filed to intervene in a pending petition for contempt and enforcement of the agreement which was initially filed by Mother. Daughter argued that as the intended beneficiary of the support, she had standing to pursue enforcement. The lower courts agreed and calculated unpaid support of over $59,000 due to Father’s failure to update the support award over the years despite increased income. The Supreme Court of Pennsylvania reversed the prior decisions finding that while children may be incidental beneficiaries of a support award, they do not have a direct interest in receiving cash payments. Instead, the intent is for support of the child generally through the parent with custody.

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Custody Exchanges during Emergency

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Life is unpredictable and from time to time circumstances may arise that disrupt your normal routine. If you share a child with a former partner, part of your normal routine likely involves a custody schedule. The question then becomes what happens to my custody schedule in an emergency situation. Presently, our country is battling the spread of a new virus and with that, new directives for individuals to remain home as much as possible to lessen the rate of infection. What should you do about your custody order?

We are stressing the following steps to guide parents during this time:

Be prepared to discuss and model good behavior for your children in both homes including hand washing, wiping down surfaces, and social distancing.

Be compliant with the Order to the extent possible; if exact compliance is not reasonable or more stringent shelter at home directives are put in place, be creative in finding other ways to sustain the relationship (i.e. facetime, skype, etc.)

Be transparent and provide honest information with respect to any suspected or confirmed exposure to the virus and try to agree on what steps you will take to protect your children from exposure.

These are a starting point. We certainly encourage productive communication beyond these listed issues. Remember to act within reason for circumstances beyond what has been described, show empathy and keep in mind how you would feel if the shoe was on the other foot.

Stay well!

 

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Planning for Settlement Negotiations: The Big Picture

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Source: Family Advocate, Vol. 37, No.3

Good negotiators, like good lawyers, are prepared. They know where they are going and how to get there. As any successful lawyer will tell you, superior preparation can often spell the difference between winning and losing the case, especially in hard-fought, complicated cases.

Download full article (PDF)

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