Changes to Grandparent Standing for Custody/Visitation

Section 5325 of the Domestic Relations laws sets out the circumstances under which grandparents and great-grandparents may petition for partial custody/visitation. One of three conditions must be met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the grandparents or great-grandparents for at least 12 consecutive months provided a petition is filed within six months after the child is removed from the home. In a decision from September 9, 2016, the Supreme Court of Pennsylvania for the Western District, held that Section 5325(2) intruded on the constitutional rights of the parents.

In D.P. and B.P. v. G.J.P. and A.P., No. 25 WAP 2015, the parents to three children had been married and subsequently separated, but did not institute divorce proceedings. The grandparents filed for partial custody under Section 5325, where the parents of the child have been separated for at least six months, after the parents mutually agreed to end contact with the grandparents. The court ultimately ruled that just because the parents were separated did not mean they could not still make sound decisions regarding their children. Parents have a fundamental interest in rearing their children as they see fit. Any law that seeks to impede on that natural right must pass the test of strict scrutiny, meaning the it must be “narrowly tailored to further a compelling government interest.” The court held that Section 5325(2) did not pass the strict scrutiny standard and hence the grandparents were not able to ask for custody. I suspect that there will be challenges forthcoming from parents that have initiated divorce proceedings but feel they can still make mutual decisions for their children without the grandparents being able to interfere.

Click here to read more about grandparents’ rights.

by

Back to School – Custody

Fall is on its way and the school year has begun. Now is a good time to review your custody agreement to ensure a smooth school year. Your schedule may have changed from the summer and you should make sure you and your children are familiar with the new schedule. If you have shared legal custody, you will need to consult with the other parent regarding any decisions concerning the children’s schools. If you have sole legal custody, you may still be under an obligation to keep the other parent informed and should refer to your custody order to double-check. It is generally a good idea to have a consensus about extracurricular activities for the children as well. If practices and games will occur on the other parent’s custodial time, you will need their cooperation in getting the children to their events.

Click below to read more.

Decisions regarding healthcare should also be made with both parent’s involvement in a shared legal custody scenario. Physicals are often needed for participation in sports and both parents should be made aware of any scheduled doctor’s appointments. Ideally, both parents should be able to attend the children’s school events, such as back-to-school night, concerts, games, etc., however, if it there is a lot of discourse between the parents you should plan ahead as to which parent will attend which events to avoid unnecessary confrontation. It is a good idea to give your children’s school a copy of the custody agreement if you anticipate any issues with the other parent, such as trying to pick the child up from school if they are not authorized to do so.

Click here to read more about custody.

by

Back to School – Who Pays for What?

,

This is an expensive time of year for parents with school-aged children. Back-to-school shopping bills can run high from clothes to backpacks, pencils, and notebooks. When you are divorced and have children who pays these expenses should have been negotiated during your divorce. Your child support payment may have been calculated with these expenses in mind or your agreements should have clearly stated who is going to pay for which items. Sometimes parents simply agree to share all reasonable expenses with one doing the shopping and keeping track of receipts.

Here is a little more information on child support payments here in Bucks and Montgomery County, PA.

Child support in Pennsylvania is based on guidelines established by the state Supreme Court. They are intended to make sure that similarly situated parties are treated similarly. The amount of support is meant to provide for expenditures for food, housing, transportation and other necessary miscellaneous items on behalf of the children.

The guideline amount will be based on the combined net monthly income of both parties. There are circumstances which may warrant a change in the amount including having a special needs child. Raising a special needs child may result in additional education costs due to specialized education. The Rules of Civil Procedure covering child support matters allow for deviations from the guideline amount so you could have a support order requiring these costs be covered by the parties depending on their income, the cost to raise a child, tuition, and extra-curricular activities of the child.

In most cases both parties come to an agreement on which parent pays how much for child support. Educational expenses need to be considered when drawing up these agreements though as circumstances change changes in the agreement are often negotiated.

The person who doesn’t play a role in deciding who pays for what is your child. Like every other issue that may divide former spouses, using children as pawns in a power game will not help you. It will harm your child, your relationship with your child and a judge in a future matter may take your manipulation into account when making a decision.

If you have questions about child support or feel you may need legal representation in a child support matter contact our office so we can talk about your situation, how the law may apply and what can be done to protect your interests and those of your child.

by

Adoption of Family Members

A streamlined adoption process is available depending on the relationship of the prospective adoptive parents and the adoptee. Specifically, grandparents, aunts, uncles, brothers, sisters, nieces, nephews, and step-parents qualify as a kinship adoption. A home study is not required in a kinship adoption, however background checks must still be completed as it relates to the adopting parent(s). 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 such that two separate petitions are not required. 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. 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. The can be revoked on the basis of fraud or duress within 60 days. Without either proper consent or termination of parental rights, a kinship adoption cannot proceed.

Click here to read more.

by

Child Support Awareness Month

August is National Child Support Awareness Month. President Clinton began the month of recognition in 1995 as part of his welfare reform agenda. The goal was to improve the collection of child support payments by widening the use of sanctions including wage garnishment and suspending driver’s licenses and passports for parents with child support arrears. As of today in Pennsylvania, wage garnishment is virtually always utilized to ensure child support payments can be collected. Child support in Pennsylvania is based on statewide guidelines established by the Pennsylvania Supreme Court. The guidelines are intended to ensure that similarly situated parties are treated similarly. Accordingly, all parties making $3000 per month with 3 kids would have the same basic support award based on the guideline amounts. The guidelines are based on an “Income Shares Model,” such that the amount is based on the combined net monthly income of both parties.

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. Pennsylvania has established a self-support reserve based on the federal poverty guidelines, however, the support guidelines make financial support of children a top priority and the child’s needs in terms of support come first. The family court has the authority to issue a bench warrant to have a party who is not making support payments taken into custody. Additionally, the court can order additional incarceration at a subsequent support hearing as a means of reiterating the importance of regular support payments and demonstrating the severity of the punishment available for failure to comply. The court can also seize any lump sum payments due to the payor including, but not limited to, unemployment compensation, workers’ compensation, and Social Security retirement or disability benefits.

Click here to read more about child support.

by

Divorced With Children: Issues You Need to Consider

,

If you are seeking a divorce and you and your current spouse are parents you need to lay the foundation for a happy and healthy future for yourself and your children. When divorcing there are both emotional and financial issues to consider. Issues surrounding children can be extremely contentious during a divorce, but a skilled attorney can help bring together to start working on issues together for the sake of the children.

If you and the other parent can not agree, a family law judge will make final decisions for you. However, they work from the relevant facts of your case, applicable laws and what they feel is in the best interest of the children. It is best to keep your case out of court and work together for the sake of your children.

When children are involved in a divorce, there are two major areas to be understood and considered:

  1. Custody / Visitation

There is legal custody (which covers who can make important legal, health and educational decisions concerning a child) and physical custody (which concerns with whom the child will live, when and for how long). Normally legal custody is shared by the parents .

During our discussions on physical custody, we will discuss where the child is going to spend his/her time during regular times of the year, vacations and holidays. Physical custody can be join which both parents have equal time or one parent may have primary custody with the other parent having partial custody. In some instances there may be no overnights or supervised custody.

2. Child Support

Parents have a legal obligation to financially support their children but must file to receive it. How that is calculated is based on state guidelines. Generally the parent who does not have primary physical custody provides child support payments to the other parent and/or agrees to pay certain bills or expenses concerning the child.

It is important to create an environment dedicated to supporting your children so they remain stable long after the divorce is over.

by

Enforcement of Support Orders

There are many options available to ensure support payments are being made. Income withholding is standard with most support orders. This will allow the support payments to be deducted directly from the payor’s income. Domestic Relations will send an income withholding order to the employer for implementation. If there is upwards of a fifteen (15) day delay in receiving payment, contempt proceedings can be initiated by Domestic Relations or the party receiving support. Overdue support, or arrears, will begin to accumulate with each late or missed payment. The court can unilaterally increase the monthly support award to account for the growing arrears in an attempt to help bring the account current again.

Several other remedies can be imposed to attempt collection of support. The court can seize any lump sum payments due to the payor including unemployment compensation, workers’ compensation, insurance settlements, Social Security retirement or disability benefits, and other public or private retirement funds. The court can put liens against real property to cloud title, suspend a driver’s, occupational, or recreational license, and report the amount owed such that it could affect your credit score. The court can even seize assets from a financial institution such as a bank. Some remedies do require advance notice to the payor regarding the action to be taken. Establishing a repayment schedule does not necessarily safeguard a payor from imposition of the remedies listed.

Click here to read more about support.

by

Partition of Real Property

A partition action is a legal proceeding to divide property amongst unmarried individuals that cannot agree what to do with the property. Pennsylvania partition actions are governed by Rules 1551 – 1574 of the Rules of Civil Procedure. There are generally only two options in a partition action. The parties can physically split the property, if possible. This is rarely a feasible option, particularly in the case of property with a structure on it, such as a home. Alternatively, the property is sold and the proceeds are divided. As far as procedure, a complaint for partition should be brought in the county where the property is located and must include all co-tenants as parties. The complaint must include a description of the property along with each co-tenant’s interest in the property.

Following the filing of the complaint and a court order on the partition, a master is appointed to the case. The master will set up an appraisal of the property to obtain an accurate value. Subsequently, the master will arrange for the sale of the property, be it private or public. The parties to the partition action are responsible for splitting all fees incurred during the partition proceeding including compensating the master. The parties do have the opportunity to resolve the partition action at any time and settle the matter amicably amongst themselves.

Click here to read more about real estate ownership.

by

Guardianship of the estate of a minor vs. estate of a person

There are two types of guardianship for minors: guardian of the person and guardian of the estate.

Guardian of the person is necessary when a minor does not have a parent to make decisions on their behalf.

For guardian of the person, the guardian must be a responsible adult who is willing to take care of the child. Once the minor reaches 14 years of age, he or she will have input as to whom the guardian should be. A parent need not apply for guardianship of the person as they have legal rights as a parent. The guardian may continue to act in this capacity until either removed by the court or when the child reaches the age of majority.

Guardian of the estate occurs when a minor comes into possession of a large sum of money, such as an inheritance or life insurance policy.

Under §5112, For guardian of the estate, the guardian must be an adult or a corporation acting as fiduciary. A parent may not be the sole guardian of the estate, but may act as co-guardian. The guardian may continue to act in this capacity until either removed by the court or when the child reaches the age of majority.

by

Pennsylvania Surrogacy

Pennsylvania does not have a statute in place as it relates to surrogacy, however, case law has upheld a surrogacy contract. There are two types of surrogacy. A traditional surrogacy is where the carrier has a genetic relationship with the child. For example, the carrier’s eggs are used along with a sperm donor. A gestational surrogacy is where the carrier has no genetic relationship. With a gestational surrogacy both the egg and sperm are implanted into the carrier. In J.F. v. D.B., the carrier mother attempted to keep the children following birth despite having entered a surrogacy agreement. 897 A.2d 1261 (2006). The court eventually held she didn’t have standing for a custody action and turned the children over to the intended parents per the contract. The courts went a step further in In re Baby S, when it explicitly upheld a surrogacy agreement. 2015 Pa. Super. 244 (2015).

Pennsylvania also allows for the intended parents to get a pre-birth order to have their names listed on the birth certificate as parents. This procedure is the Assisted Conception Birth Registration. This procedure is available when both intended parents are related to the child (e.g. gestational surrogacy). It requires the intended parents to file a petition with the court to get an order as well as the submission of a Report of Assisted Conception. The Department of Health oversees the procedure. The benefit of this procedure is that it alleviates the need for adoption proceedings. If the intended parents do not meet the criteria for an Assisted Conception Birth Registration, adoption is still an alternate method to establish legal parentage.

Click here to read more about custody.

by