Legal Issues When One Parent Moves Out of State

When deciding custody, the courts in most states use the “best interests of a child” measurement to determine division of custody and visitation rights. When the parents live a significant distance from each other, whether the custodial or non-custodial parent moves, “the best interests of a child” are again brought into the equation along with other relocation factors. Unless the parents are able to come to an agreement outside of court, the court may decide to permit the move or not, and can order new custody or visitation agreements. Different states have different laws, so it’s best to review the case with a legal counsel who is familiar with your state’s law.

When the custodial parent wants to move

In order for a custodial parent to move with a child, the parent needs permission from the other parent or court approval. If you leave without either, you risk being sanctioned, which could include fines or jail time.

Pennsylvania defines “relocation with children” as a move that “significantly impairs the ability of a non-relocating party to exercise custodial rights.” Before moving, the custodial parent must notify the non-custodial parent in writing, sent by certified mail with return receipt requested, including certain specific information. The other parent has 30 days to respond. The legal details of the process can be quite complex, especially if the non-custodial parent objects.

It is best to come to an arrangement with the non-custodial parent, with both parents signing an agreement giving permission to move and renegotiating visitation. This agreement can then be submitted to the court. If you cannot come to an agreement, you will need to file a petition with the court requesting to move.

Once again, the court will weigh whether or not the move is “in the best interests of the child.” The court may decide that the move may improve the child’s situation enough to outweigh the disadvantages of having a non-custodial parent farther away. The court will then issue a new visitation order.

When the non-custodial parent wants to move

In Pennsylvania, relocation laws do not specifically cover the non-custodial parent, but that does not mean that a parent can move wherever he or she wants without concern for the law. When a non-custodial parent moves out of state, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) comes into play, keeping all custody decisions within one state and enforcing the Parental Kidnapping Prevention Act, to ensure a non-custodial parent does not abscond with the children.

Additionally, if the non-custodial parent moves anywhere without notifying the custodial parent and the court, that parent risks various consequences: being found in contempt of court, paying the custodial parent’s legal fees, being charged with “parental neglect,” and losing parental rights.

Thus, it is crucial to go over your plans with the other parent well in advance of your move and, if necessary, file a modification of child visitation with the court.

 

Regardless of which parent is planning to move, having experienced counsel to help you through the process will limit the stress on both parents and help you come to an agreement that benefits the children and that the court will approve.


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Why Pro Se Divorce Is a Bad Idea for Most People

“Pro se” is Latin meaning “for oneself.” In divorce, it means not retaining legal counsel for any step of the divorce process: filing the paperwork to serve the other spouse divorce papers; negotiating a settlement of all assets, financial support, and custody; and finally, filing the final papers in court, including the Marital Settlement Agreement.

Pro se can be tempting, especially when a divorce is uncontested and seems amicable. It saves a lot of money in attorney fees. However, in the long run, it may cost you. There are many important reasons to retain counsel from an experienced divorce lawyer from the onset.

The most important reason is simply that the law is extensive, confusing, and time-consuming. Lawyers spend many years learning and developing experience so they can navigate the courts, the paperwork, the arguments, the research, and the proper legal terminology to provide you with the very best outcome for you and your children. You don’t know many of the loopholes and exceptions that could work against you, or the additional opportunities that might work in your favor.  Not knowing these things could cost you a bundle.

Additionally, a divorce may start out amicably, but emotions often run high and disagreements emerge when trying to reach settlement. Then the process ceases to be so agreeable. Often, if one partner has a stronger personality than the other, he or she can pressure or bully the other person into giving more than is actually fair. Having legal counsel makes this less likely to occur. And if one spouse suddenly decides to bring in a lawyer after the process has begun, the other ought to do so as well.

Other important reasons to retain legal counsel:

  • There is a significant disparity of income (e.g., one spouse is a homemaker)
  • One spouse has retirement plans that the other spouse would like to share
  • Issues of fraud, abuse, addiction, or narcissism are involved or are suspected
  • Children are involved

Divorce is a difficult process by its very nature. It’s our job to try to make it as easy as possible for you. Talk to us to see how we can help you navigate the divorce process with minimal stress on you and with maximum results.


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Grandparent Adoption

An adoption by a grandparent qualifies as a kinship adoption. Some of the statutory requirements for adoption are waived in the case of a family member adopting a child. A standard adoption will require a home study to be completed by the local Children & Youth services agency. This process is expensive and takes a number of months. This requirement is waived in the event of an adoption of a grandchild. Background checks will be required for the adopting parent(s). Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare.

If the natural parents are consenting to the adoption, their consents can be attached to the Petition for Adoption. There must be at least thirty (30) days between when the consents are signed and when they are attached to the Petition for filing since there is a thirty (30) day revocation period. Alternatively, if the natural parents do not consent, you can plead grounds for involuntary termination within your adoption petition. A filing fee is payable to the county at the time you file your petition for adoption. After filing the Petition, you will receive notice of when you are scheduled for your hearing. You will need to notify any party that is required to receive notice of the hearing per the adoption statutes in advance of the hearing.

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Do We Need a QDRO?

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If your spouse has a retirement plan or pension and you are entitled to share in the distributions, you absolutely need a Qualified Domestic Relations Order (QDRO). In fact, a plan’s administrator is not permitted to distribute funds to anyone but the participant without a QDRO.

A Domestic Relations Order (DRO) is an order or judgment issued by a court directing or approving the distribution of all or part of a participant’s retirement plan to another payee. This payee can be an ex-spouse or a dependent. According to the IRS, an adult payee would also be required to cover part of the cost of the plan, while a minor would not. (The calculation is here.)

An order is considered “qualified” only after it has been approved by the plan’s administrator–i.e., it fulfills the particular plan’s criteria and procedures. A DRO judgment is generally submitted directly to the plan to be officially qualified. Distributions to the payee are made tax-free and penalty-free, even if the participant is below the age of distribution, so that the participant is not disadvantaged by the roll-over or distribution.

The language of a QDRO is very specific, so it’s best to work with an experienced lawyer and/or actuary to draw it up. The need for a QDRO can be avoided, even if your spouse (or you) have retirement or pension plans, through the negotiation process. Some other asset or assets can be accepted by a spouse in exchange for any portion of the retirement account, for instance, maintaining full ownership of the family home rather than selling and splitting the profit. If you can come to an out-of-court property settlement that stipulates how much, if any, of the pension or retirement account will be split, you can avoid the judge dividing your retirement accounts for you, as he or she sees fit. If at all possible, come to an equitable agreement before the end of the divorce process in order to retain a degree of control.

The QDRO process can take time, so don’t wait. Ideally, it should be completed in time to submit along with the rest of the divorce settlement. If you begin the process late, or even after the divorce, and your spouse remarries or dies, you may not get any benefits.

Government and military pensions follow different laws and are not covered by the QDRO laws. They are more difficult to split than plans from private employers, in which case, it is even more imperative to get the help of a divorce law expert.


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Same Sex Adoption

Same-sex adoptions can take place in the form of a second-parent adoption. A second-parent adoption allows a person to adopt the child of their “unmarried” partner. In 2002, the Supreme Court held that the parental rights of the first parent need not be terminated for the adoption by the second parent to take place. Since that time, PA has remained in the minority of states that allow second-parent adoptions on a statewide basis. If a same-sex couple is married, they follow the same procedures as a kinship or step-parent adoption.

Both types of adoption will require background checks be completed as it relates to the adopting parents. Presently, there are three background checks required: (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. There are nominal fees associated with requesting these background checks. Second parent adoptions will also require a home study whereas a step-parent adoption does not. The home study consists of several visits to the home over a span of time to observe the living arrangements and relationship with the proposed adopting parent. In Bucks County, home studies are conducted by the Children & Youth Social Services Agency. Following successful completion of all the pre-requisites and filing of the Petition for Adoption, the final step is the adoption hearing in either scenario.

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Background Checks for Adoption

Background checks are required for all prospective parents in an adoption matter. In Pennsylvania, there are three background checks that are required: Pennsylvania Child Abuse History Clearance through the Department of Human Services, Pennsylvania Criminal Record Checks through the State Police, Federal Bureau of Investigations (FBI) Criminal Background Check through the Department of Welfare. These background checks must also be completed for all other adult household members where the adoptee will reside. At this time, requests for all three background checks can be done online. The cost for each background check is nominal. Fingerprinting is required for the FBI Criminal Background Check.

If a prospective parent has lived outside of Pennsylvania in the five (5) years preceding the adoption petition, similar background checks must be acquired from each state where he or she previously resided. Background checks must be less than one year old at the time of the adoption hearing. The background checks are reviewed in the context of a home study, where required, and attached to that report. Where a home study is not required, the background checks can be submitted to the court with the petition for adoption. The mere existence of a record does not necessarily thwart the adoption process. The court must look to the nature of the record and whether it poses risk to a child. If there is no substantial risk, the adoption may still proceed.

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National Adoption Month

November is National Adoption Month. This is the 23rd year for recognition of National Adoption Month which began in 1995 when President Clinton extended the recognition from a week to the entire month of November. Pennsylvania participates in national adoption awareness each year through presentation of a proclamation and renewed pledge to make sure every child has a place to call home. Pennsylvania specifically achieves these goals through the Statewide Adoption & Permanency Network and PA Adoption Exchange. Both organizations work towards the overall goal of permanency for all children. PA estimates that currently there are approx. 2,500 children in foster care awaiting adoption. You can visit www.adoptpakids.org for more information on the adoption process as well as many of the children in need of a home.

In addition to a month-long awareness, a National Adoption Day is also recognized. This year it will be November 18, 2018. Many local courts will schedule adoption hearings for that day as well as celebrations for the families. National Adoption Day will be observed in Bucks County on November 16, 2018 from 11 a.m. to 1 p.m. Food will be provided along with speakers and the Central Bucks West choir. You can visit https://natadoptday5.app.rsvpify.com/ for more information and to register to attend.

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Adoption Consents

Before an adoption can be finalized, the rights of the natural parent(s) must be terminated. Parental rights can be involuntarily terminated under certain circumstances. Parental rights can also be voluntarily relinquished via consent to the adoption. Pursuant to 23 Pa. C.S. Section 2711, a consent must be signed by the following individuals where applicable: (1) the child(ren) being adopted if over 12 years of age; (2) the spouse of the adopting parent if that spouse is not also a petitioner; (3) the natural parent(s) of any minor child(ren) being adopted; (4) the guardian of an incapacitated child up for adoption; and (5) the guardian of a minor child or persons having custody when the adoptee has no parent whose consent is required. There are several timing rules that must be adhered to. First, the consent cannot be signed by a natural mother within 72 hours, or three days, after the birth of a child. A consent can be signed by a natural father at any time after he has been notified the child is expected to be born or has been born. Executed consents become irrevocable after 30 days. They can be revoked on the basis of fraud or duress within 60 days.

As far as other technical requirements, the consent must include the date, full address of place of execution, and be witnessed by two adults whose name, address and relationship to the person executing the consent are required. The consent should be notarized and the notary’s complete address should be included. Another practical tip is to be careful who you select as a witness. The persons witnessing the consents may be called upon in court to testify as to the circumstances under which the consent was executed. The court must be satisfied that there was no fraud or duress and the person executing the consent was of sound mind. Having the prospective adoptive parents as witnesses can lead to an inference of duress and relatives of the natural parents can be viewed as biased so it is preferable to use impartial and credible witnesses with no interest whatsoever in the outcome of the adoption.

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Counseling in Adoption

Prior to an adoption taken place, the rights of the natural parent(s) must be terminated. This may occur via consent, voluntary relinquishment or involuntary termination. Regardless of the method of termination, each county is responsible for keeping a list of qualified counselors who are available to assist natural parents contemplating voluntary relinquishment or facing termination of parental rights. There is a filing fee due for each adoption petition that is filed. The amount of the filing fee varies by county. A portion of the filing fee goes to support the county counseling fund which subsidizes the costs for counseling where the natural parent(s) desire to participate but are unable to afford it.

If the natural parent(s) appear at the termination hearing the court must ask the natural parent(s) if counseling services were utilized prior to any decree terminating their rights. If the natural(s) have not received any counseling, the court may briefly postpone a decision on the termination to allow the natural parent(s) an opportunity to seek counseling. The Center for Adoption Support and Education is a national leader in counseling services including counseling for natural parents whose children have been adopted or placed in foster care. For additional information visit https://adoptionsupport.org/.

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Student Loans and Your Divorce

Given the high cost of higher education, student loans carried by either or both spouses can weigh heavily on financial decisions and life choices. Often it can delay the purchase of a house or starting a family. This can cause a great deal of stress. It’s not surprising that 13% of divorced people say student loans were the major cause of their divorce.

But who pays the loans after you split? There’s no easy answer to this question. You might think that the spouse who got the loan pays for the loan, but there are many factors.

  • Was the loan incurred before or after marriage?  Here in Pennsylvania, loans acquired during a marriage will be considered marital property.
  • Did the other spouse supply support, such as delaying education, taking over additional responsibilities, or taking another job while the incurring spouse was in school?
  • Did the supporting spouse help pay down the debt already?
  • Was a degree earned?
  • How long were you married after the degree?
  • Did the degree lead to a lucrative career from which both parties benefited?
  • How well can the other spouse support himself or herself without the incurring spouse’s income?

The determination of whether the loans are considered separate property or marital property is the most fundamental factor, before other considerations are made. In a community property state, marital property, including debt, is split 50/50. In an equitable distribution state, the factors listed have much more weight when determining the distribution of the debt.

If the loan was incurred before marriage, it is considered separate property – generally. But if the degree was subsequently incurred once married and both spouses benefited from the degree, the loan may be considered to have been incurred in order to attain marital property, and therefore it will be considered marital debt. If a degree was not earned or no benefit came from the degree, it would likely remain separate property. The spouse who incurred the debt would be solely responsible for it.

In some situations, the support provided by the other spouse may actually be considered a loan in kind, which could offset the supporting spouse’s portion of the incurring spouse’s loan debt.  It is important to note, when we work with you on equitable distribution of assets and debts, the loan may still fall primarily on the party who attended school.

The best approach when dealing with these muddy waters is to enlist the help of a lawyer with expertise in the area of student loan debt. The lawyer will be able to give you the likely scenarios for your particular situation and come up with a presentation of facts that will best benefit you. Talk to us to see what we can do for you.

 


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