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.

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Divorced With Children: Issues You Need to Consider

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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.

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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.

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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.

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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.

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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.

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Updates to Rules of Civil Procedure

Several updates are being made to the rules as it relates to family law matters. Rule 1915.11, which addresses the appointment of an attorney for a child for a custody matter, now permits the court to apportion the costs for an attorney appointed for a child as the court deems appropriate.

Rule 1915.15 will be revised to ensure parties’ names and addresses are included in a petition to modify a custody order. Finally, Rule 1920.33 will feature changes to the format and requirements for inventories and pretrial statements for equitable distribution matters.

Other proposals for change include an update to the support guidelines and self-support reserve which has not been revised since 2013. The current self-support reserve is $931 reflecting the 2012 poverty level for one person. There is a proposal to Rule 1915.3-2, concerning criminal record or abuse history, to include a space to indicate any involvement with a child protective services agency or active juvenile cases. Lastly, the criminal record history would add columns for contempt of an Order under the Protection from Abuse Act, adjudication of dependency or delinquency and history of sexual violence or intimidation under the Protection of Victims of Sexual Violence and Intimidation Act.

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How Do I Enforce a Custody Agreement in a Divorce Settlement?

When we work with you on your divorce, your divorce settlement agreement will contain all the important issues facing you and your spouse including who has what type of custody. If your relationship breaks down and one party refuses to recognize the other parent’s custody rights, the aggrieved parent can try to have the agreement enforced in court.

A properly executed, final divorce agreement is binding on the parties. It’s normally incorporated into the final divorce decree so that it will be as enforceable as any other court order. After your divorce the family courts retain the ability to enforce that judgment as long as necessary.

When you have problems it is important to know that there is a formal procedure to follow to have a custody arrangement enforced immediately. Yes, you can call the police, but do you really want your children to see that circus? To most effectively enforce the agreement we need to get in front of a judge if your spouse is being uncooperative.

An enforcement hearing is normally a much more simple legal proceeding compared to the entire divorce case with all the many issues it involves. At issue will be whether the agreement is valid and enforceable and if so whether it was violated or not. If so, the court needs create an order to enforce the agreement.

A motion to enforce the agreement would be filed with the family court. It explains the situation and discusses what terms of the agreement or prior court order was not complied with. After it’s filed the court will set a hearing date for the motion. If there are disputed issues of material fact a hearing will be scheduled. At the hearing both sides can present evidence to support their side of the story. The judge considers the evidence and legal arguments and issues a decision.

If the former spouses have a difficult relationship child custody issues and all the emotions that come with them can turn a bad situation much worse. Like all other divorce issues it’s best to try to negotiate a resolution to disagreements over custody but ultimately an aggrieved parent being denied his or her custody rights can try to bring the issue to a close with a court order.

If you have questions about child custody or feel your rights to the custody of your child have been violated, 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.

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Two Year Separation Divorce

To move forward with a no-fault divorce in Pennsylvania, the parties need only allege an “irretrievable breakdown of the marriage” and either consent to the divorce after a 90-day period or establish 2-year separation. A no-fault divorce can also be obtained if one of the spouses is institutionalized for a period of 18 months provided they will likely still be institutionalized 18 months following the commencement of the divorce. No-fault divorce became available in Pennsylvania in 1980 when the Divorce Code was revised. Originally, a separation period of three years was required but that has since been reduced to the two year separation period currently required. Recently, there was a legislative push to further reduce the separation period to only one year.

Last November the House voted for the passage of Bill 380 which proposes amending Section 3301(d) of the Divorce Code to allow divorce on the basis of separation for a one year period as opposed to the current law which requires a two year separation period. At this point, Pennsylvania has one of the longer waiting periods for divorce on the basis of separation. New York, Ohio, and Maryland require only one year of separation. New Jersey and Delaware only require six (6) months of separation. The Pennsylvania Bar Association (PBA) played a significant role in pushing for the passage of the bill. According to the PBA, there has actually been a decrease in divorce since many neighboring states have allowed divorce after only a minimum period of separation. Additionally, a shorter separation period will allow the parties to move on with their lives quicker with less emotional and financial strain as well as promote the best interests of minor children in decreasing the period of uncertainty. Unfortunately, the bill died in the Senate this summer such that a two-year separation period stands for Pennsylvania.

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Third Party Custody Rights

Parties other than parents and grandparents may be able to file for custody. Section 5324 of the Pennsylvania Domestic Relations laws discusses standing for any form of custody. A person who stands in loco parentis may be able to obtain custody. In loco parentis status has been interpreted to mean an assumption of parental status as well as an actual discharge of parental duties giving rise to a relationship which is the same as between parent and child. You must be able to establish more than just a frequent care-taker role. New Jersey allows other parties to file for custody if they have become a “psychological” or de facto parent. This person must have established a relationship with the child with consent of one of the parents, be living with the child, have taken on all responsibility for the child, and have developed a meaningful relationship.

If a party has established they are a “parent” under the applicable statute, any custody matter then proceeds as usual with an analysis of the best interests of the child. If a party has not met the requirements to be designated as a “parent,” they may still be able to request custody in NJ. The party must prove there is gross misconduct, neglect or exceptional circumstances affecting the welfare of the child. If that is proven, the then court shall consider if awarding custody to the third party would promote the best interests of the child. The initial inquiry is a tough to prove. This is due to a presumption that the parents should have custody and the state’s position in protecting the constitutional rights of parents as it relates to autonomy over their own children.

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