National Alcohol Screening Day

Today is National Alcohol Screening Day. The day is intended to raise awareness and highlight treatment options. It was first observed in 1999 and falls under the category of mental health screenings. Alcohol abuse is a frequent issue in family law matters. Often times, excessive alcohol consumption can be a trigger to aggressive or violent behavior. It is not unusual for Protection from Abuse matters to include allegations from the victim that the other party was drinking prior to the incident resulting in the petition. Alcoholism is also a factor in custody matters.

Drug or alcohol abuse is one of the factors the courts must consider when trying to determine what custody arrangement will be in the child’s best interest along with past or present abuse. The court must also consider the criminal background of the parents as well as any other adult household members. Charges related to driving under the influence of drugs or alcohol are on the list as far as criminal history to be considered in a custody matter. It is possible to request a drug/alcohol evaluation as part of a custody matter. Depending on the extent of the abuse, supervised custody may be appropriate to ensure the safety of the child. You can visit https://mentalhealthscreening.org/programs/initiatives for more information on national alcohol screening day.

Click here to read more about Protection from Abuse.

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Updating your Will after Divorce

After your divorce it is very important to update your estate planning documents, most importantly your will. If you leave your old will in place your financial assets, property and even the care of your children may wind-up in the hands of those who you no longer want – your former family members or ex-spouse.

Select a new executor of your will: the executor of your estate is the person who will be charged with distributing your wealth and property. While they are to follow your wishes, if your executor is still your former spouse he/she may not do as you wish or add undo stress when dealing with your family members. When you select an executor make sure they understand your wishes and

Clearly outline who gets what items: Part of the reason you want to clearly spell out the distribution of your items is to avoid fighting by your loved ones after the fact. This can include a family heirloom or an important piece of your jewelry. Rather than have your children fighting over items they were “promised” it is so much easier if you

Name a guardian for your minor children:

In most cases, upon your death your former spouse would be given full custody of your children. If that would not be in the best interest of your children then you will need to spell out why and we suggest you do that under the advisement of an attorney. Furthermore, if your former spouse is no longer in your children’s life due to domestic violence, alcoholism or drug abuse, it is critical that your will contain the right wording and plan for your children. Protecting

Estate planning may seem tedious but is there to protect your wishes should you pass on. Do not rely on state law to handle your estate. Take a proactive approach and ensure that financial assets and care of your children are handled by a responsible individuals who will ensure your children, financial assets and valuables are handled properly.

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Grandparent Custody Rights

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.

It is also possible for grandparents to request any form of custody under Section 5324 of the Domestic Relations laws. Grandparents may request any form of custody if the relationship began with the consent of the parents, they are willing to assume responsibility for the child and the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.

Peters v. Costello, 586 Pa. 102 (2005), was a Pennsylvania Supreme Court case which determined that non-biological grandparents also have the right to seek grandparent visitation rights where they stand in loco parentis to one of the parents of the child and it’s in the child’s best interest. The court went on to explain that the statute conferring the right of grandparents to seek custody is not restricted to biological grandparents.

In loco parentis embodies 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. In Peters, there was testimony that the grandparents raised the mother, the mother and child had lived with them for several years, they had a close relationship with child and spent time with her including birthdays and holidays, and neither parent had previously objected to their de facto grandparental relationship with the child.

Click here to read more about custody.

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Post-Nuptial Agreements

Parties are often encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. A pre-nuptial agreement is a private contract between the parties entered into prior to their marriage that outlines how assets and debts will be handled if the parties subsequently divorce. A basic and straight-forward pre-nuptial agreement would provide that each party retains anything they acquire in their own name and that anything marital or acquired jointly will be divided based on the divorce laws. A pre-nuptial agreement may also provide for an increasing amount of support to a spouse based on the number of years married or number of children produced. Alternatively, one spouse may be required to pay support as a punishment if they commit adultery during the marriage.

An agreement can still be entered even after the marriage date. It addresses the same issues as a pre-nuptial agreement as far as how assets and debts would be divided in the event of a divorce and if any support award would be contemplated. This type of agreement is a post-nuptial agreement. A property settlement agreement or marital settlement agreement is the term for an agreement entered in the context of a divorce. For any of the above agreements to be valid certain conditions should be met. One, there must be a full and fair disclosure of the financial resources/existing assets by both parties. If there is not such a disclosure, there must be a provision in the agreement providing that the parties voluntarily and expressly waived the right to disclosure. Two, it must be clear that both parties voluntarily entered the agreement. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation.

Click here to read more.

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How To Tell Your Children About Your Divorce

Making the decision to your divorce can be difficult. If you have children, the thought of telling them about the split may be overwhelming. While it can be a very difficult conversation to have with your children, a bit of planning and commitment to compassion will make it easier on everyone.

Have a plan to tell them. You and your spouse are ending your marriage and so will begin your relationship as co-parents. While you may be battling each other on several fronts make the commitment to show your children peace. Bring the children together as a family, and explain the situation and plan. Make sure they are comfortable and in a safe place and do not have plans for that day. They may have a variety of emotions to deal with and will not want to cancel plans or be forced out of the house.

Accept the emotions and questions as they are presented to you and do not tell your children how they should react. They may cry, yell at you, sit stunned or actually say “this is better since you fight all the time.” Your kids will have many questions and may even seem a bit self-centered. Remember, children want to feel secure about where they are going to be living and when they are going to see you. More than likely they have friends who have divorced parents and see the switching of homes and sharing of holidays. Your kids are going to want to know what the plan is for them.

Reassure your children that it was not their fault and that you still love them. Often times children feel that if they behaved better, did not fight with their siblings, or earned better grades their parents would be happier and staying together. It is critical that they hear from you it is not their fault and that adult reasons are the cause for your split.

During the months while you are getting divorced you have a beautiful opportunity to show your children peace. Yes, there may be many moving parts including moving to two new homes. If you give them a stable environment and always come from a place of love while in their presence they will adjust a little easier to all the changes.

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Dividing Property in Divorce

Equitable distribution is the term used in Pennsylvania referring to division of marital property at the time of divorce. Marital property will consist of nearly everything acquired in either party’s name from the date of marriage through to the date of separation. It will also include pre-marital assets that have increased in value during the marriage. Equitable distribution does not necessarily mean a 50/50 split of all marital property. Instead, the statute on equitable distribution sets out 13 factors to be considered. Those factors are listed in 23 Pa C.S. 3502. While the length of marriage is a factor in equitable distribution, it does not mean that assets won’t be split at all in shorter marriages.

If the parties have to go to court for equitable distribution, they will be required to submit a statement beforehand laying out what they allege is the marital property at issue, how the factors listed affect their case, and what they are ultimately seeking as an “equitable” distribution. It is important to have knowledge of all the marital assets and debts at issue. Additionally, parties should have documentation to prove the value of any assets and debts to be addressed. Key dates for valuation may include date of marriage, date of separation and final hearing date. Items acquired after the date of separation but prior to the final divorce decree should also usually be excluded.

Click here to read more about division of property.

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Divorce vs. Mediation

Parties often ask what is the best way to proceed when initially contemplating separation and/or divorce. Generally speaking, parties are encouraged to try to reach an agreement to resolve whatever issues have arisen in any legal matter. In family law, agreements are especially encouraged due to the personal nature of the issues at hand along with the belief that it is better for the parties to draft their own agreement rather than allow a stranger to dictate their family dynamics going forward. Additionally, litigation or time spent in court is often the most expensive aspect of a divorce matter.

Both mediators and divorce attorneys can help you negotiate or draft a settlement agreement. The key difference is a mediator is an impartial third party where as an attorney is representing one party’s interest. This is not to say a divorce cannot be resolved with only one attorney; simply that the attorney cannot give advice to both parties since it would be a conflict of interest. Instead, the attorney should make it clear to the unrepresented party their role in the process and the limitations on communication between the attorney and the unrepresented party. Further, it is possible for both parties to have independent counsel and still reach a settlement agreement. If mediation is successful, an attorney may still be needed to file and process the divorce matter.

Click here to read more about options for mediation.

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Social Media Use During a Divorce

In a divorce, social media activity can be used as evidence which may affect alimony, property division and child custody. Accordingly, anyone involved in these family law proceedings should be cautioned about use of social media. As many people know, once something is posted online, it can never truly be deleted. Social media posts are being used more and more in courtrooms during divorce proceedings.

In a divorce, a post on social media may be used to undermine a party’s truthfulness or to demonstrate that one party was having an affair prior to the date of separation. With regard to property division, evidence from social media could show that a party is hiding either marital or separate assets. Sometimes, even if the social media cannot be directly used to show concealment of assets, it can provide a basis for more thorough discovery.

In a custody dispute, social media posts can be used against a party to show that the party is not fit to have custody of the child. One of the factors that Pennsylvania Courts look at when determining whether a parent should receive custody is a history of drug or alcohol abuse. If a social media post were to reference irresponsible activities such as drug use, this evidence can be used against the party. Some other factors include willingness of the parties to cooperate with one another and whether the parent would encourage continuing contact between the child and the other parent. Disparaging posts by one parent against the other parent on social media can be used to infer an unwillingness to cooperate and a tendency to alienate.

Additionally, in support matters, social media posts alluding to recent vacations, expensive purchases, or even job promotions can undermine that party’s argument that he or she cannot afford support payments.

It is a good idea not to post on social media regarding the other party, vacationing, partying, spending, or anything of the like when you are involved in a divorce, support, or custody proceeding. Even an innocent post may be twisted and used against you. Use common sense if you do post to social media during legal proceedings, knowing that your posts may appear in the courtroom.

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Make Time with Your Children Special

For years we have heard about the importance of spending “quality time” with our children. When you are divorced and following a custody schedule (sometimes called a parenting time schedule) you may feel you have to create special moments in every day you have your kids. Settinging the expectations of constant magical moments when your children are in your care is unrealistic. It is important to establish routines, new traditions, and allow your children to grow up in a supportive environment.

Children love routines. Make sure you run your home to ensure they can settle into a schedule as they arrive. This includes where they put their bookbag, what time dinner is served, and when they should make their lunch. The familiarity when they are with you will be a comfort to them and allow them to ease into your home when they spend time with you.

Traditions are important for children so bring forward into your post-divorce life a few from the past and also create some new special memories. This may include establishing Sunday dinner when everyone gathers to help cook, an annual ski trip, visiting the Shady Brook Farms light display, or watching Fourth of July fireworks together. These traditions do not need to be elaborate or expensive. In fact, sometimes the sillier and simpler the better remembered.

As your children age they will start to establish their own lives with friends, dating, and sports schedules. There will be times when you feel you barely see them as they have another game, a date, or want to sleep over at a friend’s house. This will take them away from you during “your parenting time” and you may feel it is unfair since you already have limited time with them. However, realizing that this is a natural part of growing up and not making them feel guilty is imperative to their emotional well-being. Support them and enjoy the time when they are with you. Establish those traditions, like family dinners that they will cherish and soon enough you will find that they are older and actually want to spend time with you again.

There are many adjustments when you divorce. Spending less time with your children is a hard one that takes some to settle into. However, if you are steadfast in providing a loving home and committed to making memories you will undoubtedly enjoy your time with your children and watching them grow.

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International Custody Cases

International custody cases raise issues of both jurisdiction as well as subsequent enforcement. For cases beginning in the U.S., the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) likely applies. The UCCJEA gives jurisdiction for a custody matter to the home county of the child. This would be the county where the child has resided for six (6) months prior to the commencement of the custody action. If jurisdiction is not clear based on an analysis of the home state, the courts should then look to see where there are significant connections and substantial evidence relevant to the custody action. Significant connections is more than just mere presence in any state. Once a court obtains jurisdiction under one of guidelines above, that court continues to have exclusive jurisdiction until it is established that another court has become more suitable for jurisdiction. Accordingly, any modifications of custody must go through the court that made the initial or prior determination.

Enforcement of a custody order is addressed by the Hague Convention on the Civil Aspects of International Child Abduction. Signatories to the Hague Convention are required to immediately return children if taken or retained in violation of a custody order. All countries who are parties to the Hague Convention must establish a “Central Authority,” an office responsible for dealing with Hague Convention violations. For children removed from the United States, a petition for return should be filed through the U.S. State Department, Office of Children’s Issues. From there, the petition is transmitted to the Central Authority for the other country involved and ultimately adjudicated there. It is important to begin the process as soon as a violation occurs for the best likelihood of having the child returned.

Click here to read more about custody matters.

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