Discovery in Custody

Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is governed by the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.). Rule 1930.5 states that there shall be no discovery in a simple support, custody or Protection from Abuse proceeding unless authorized by court. In order for you to be allowed to send discovery in a custody matter, you must get permission from the court. If a request for discovery is granted, discovery would then proceed as in any other matter.

Formal discovery methods include interrogatories, depositions, production requests, subpoenas to produce things and/or documents, and/or requests for admission. Interrogatories and production request are the most frequent methods of discovery in family law cases. Interrogatories are a written set of questions for the other party to answer. A production request lists all the documents a party is seeking. Subpoenas are a good tool when it is necessary to get information directly from the source in the instance a party does not have it, will not cooperate in turning it over, or you suspect they may tamper with the documentation. Examples of relevant documentation to seek in a custody matter may include health care records for the children and/or the other parent, academic records, any prior evaluations completed, expert reports, criminal records of the other parent, and information on potential witnesses.

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Child Support

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 pay the same amount of support based on the guideline amounts. The guidelines are based on an “Income Shares Model.” Accordingly, the guideline amount will be based on the combined net monthly income of both parties.

For purposes of support, net income only allows deductions from gross income for taxes, F.I.C.A. payments (i.e. Social Security), non-voluntary retirement payments, mandatory union dues and alimony paid to the other party. Gross income includes all wages, salaries, bonuses, fees, commissions, income from business or property, pension and/or other retirement, income from an estate or trust, Social Security disability or retirement benefits, temporary and permanent disability payments, workers’ compensation, unemployment compensation, alimony payments, and all other entitlements to money or lump sum awards.

The guideline amount looks at the combined monthly net income for both parents and the number of children. The child support award is then determined based on any applicable custody schedule and the proportion of income comprising the guideline amount. Additional expenses can be added in such as health insurance costs, child care costs, summer camp, private school tuition and unreimbursed medical expenses. These expenses will also be split between the parties in proportion to their income.

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National Adoption Day

National Adoption Day is observed nationwide each year on the Saturday before Thanksgiving. 4,500 children were adopted on National Adoption Day last year and 400 different cities participated in some form of celebration. There have been approx. 54,500 children adopted since 2000. The month of November is National Adoption Month. This is the 20th year for recognition of National Adoption Month after President Clinton extended the recognition from a week to the entire month of November in 1995. The week-long celebration began in 1984 under President Ronald Reagan. Pennsylvania participates in presentation of a proclamation every year regarding National Adoption Month pledging its commitment to make sure every child has a place to call home.

Bucks County is holding its National Adoption Day, tomorrow, November 20, 2015. The celebration begins at 11 a.m. on the third floor of the main courthouse in Doylestown, PA. The celebration is spearheaded by the Bucks County Children and Youth Social Services Agency as well as the Register of Wills and Orphans’ Court. This year one of Bucks County’s most well-known adoption attorneys, Samuel Totaro, along with his wife, Andrea, are being honored for their work in finding homes for children. A brief reception will follow the awards.

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Background Checks for Adoption

Background checks are required for all prospective parents. The requisite checks include Pennsylvania Child Abuse History Clearance through the Department of Human Services, Pennsylvania Criminal Record Checks through the State Police, a Federal Bureau of Investigations (FBI) Criminal Background Check. 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. 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 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. The 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.

 

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Interest in Marital Property

A creditor may run into trouble in seeking to pursue their interest through real property of a married couple. Lappas v. Brown, 335 Pa. Super. 108 (Pa. Super. 1984), established that property subject to an order of court is in custodia legis, or under wardship of the court, pending compliance with the order. In Lappas, the underlying dispute involved a defense attorney who confessed judgment to get payment for legal services rendered. Meanwhile, the Commonwealth had seized all available funds as derivative contraband. Ultimately, the attorney was unable to collect his fee due to the existing order of court regarding the forfeiture. City of Easton v. Marra, 862 A.2d 170 (2004), expanded the principle of in custodia legis to actions for divorce and equitable distribution. In City of Easton, a divorce proceeding had been pending since 1988 when the City sought collection of unpaid taxes by forcing a tax sale of the real property the parties owned. A motion to stay the sheriff’s sale was granted since the property remained in custodia legis pending final resolution and equitable distribution per the parties’ divorce action.

Another example of the principle in the context of a divorce action was illustrated in Fidelity Bank v. Carroll, 416 Pa. Super. 9 (Pa. Super. 1992). Husband had a judgment entered solely against him for unsecured loans which went into default. The bank sought to put a lien on the marital residence however the Court held the bank’s lien could not attach to the marital home since the marital home was subject to equitable distribution in the pending divorce action. “Accordingly, the Bank could acquire no greater interest in the marital home than that of [Husband]. Here, it turns out that [Husband] has no interest in the marital home. Therefore, the Bank also has no interest in the home.” Id. at 14. In summary, a creditor cannot touch the interest of a non-debtor spouse, e.g. their share of a marital home.

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Contested Name Change

When requesting a name change of a minor, in addition to the publication requirements for all name change petitions, you must also prove service on the non-petitioning parent. If the other parent does not agree with the name change, the court must decide after hearing from the parties. There is no standard in the name change statute as far as what the court should be considering. Instead, a standard has been established through case law on prior name change matters. Similar to custody matters, a name change of a minor should only be granted if it is in the child’s best interests. The party requesting the name change has the burden of proof and must convince the court how the requested change would serve the child’s best interests.

The best interests of a child refer to the physical, intellectual, moral, social and spiritual needs of the child. General considerations in a best interests analysis, specifically in the context of a name change, include the natural bond between parent and child, the social stigma or respect afforded a particular name within the community, and if the child is old enough, whether the child understands the significance of the name change. There should not be a presumption afforded to either parent. The history of patrilineal naming (giving the child the father’s last name) cannot be the sole basis for granting a petition for name change. The court must review each case independently and make a determination in light of the totality of the circumstances.

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APL vs. Spousal Support

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APL is short for alimony pendente lite which translates to alimony while the divorce is pending. Spousal support can be sought when the parties are separated and potentially before a divorce matter is pending. Often, these two terms for support between spouses are used interchangeably. This is due in large part to the fact that they are calculated the same way. Both forms of support are based on the difference in the spouses’ incomes. Pursuant to Pennsylvania Rule of Civil Procedure 1910.16-4, without children, spousal support or APL is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support or APL will only be 30% of the difference of the net incomes. Additionally, both forms of support are generally retroactive to the date of filing. However, the underlying purpose of the support award and potential defenses available distinguish APL from spousal support.

The purpose of APL is to allow the income-dependent spouse to be able to defend themselves in the divorce action. In that regard, marital misconduct is not a factor in an APL award. This may even apply to situations where the party seeking APL is already cohabiting with someone else. In contrast, there are defenses to a spousal support award. Generally, any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Conduct which takes place after separation is generally not relevant for establishing fault as a defense to a request for spousal support, however, such conduct may be introduced if it will go to show the conduct began before separation. Cohabitation is grounds for termination of a spousal support award.

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Divorce Based on One-Year Separation?

Earlier this year a bill was introduced to the Pennsylvania General Assembly which would affect the Divorce Code. House Bill 380 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. Representative Tara Toohil proposed the bill and cites several reasons for the change. First, reducing the duration for divorce will reduce the turmoil for minor children. There is consensus in the psychological field that continued conflict of the parents is the primary influence on the well-being, or lack thereof, of the children. Second, longer divorces allow for additional litigation and prolonged emotional strain. The third reason offered in support of the bill is the lack of any economic benefit by continuing with a two year separation period. For example, any alimony award will generally be reduced by the period of support received while the divorce was pending such that there is no benefit to a longer separation period.

Finally, Representative Toohil points out that all surrounding jurisdictions already allow for divorce on a shorter time frame. Specifically, 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 recently submitted a brief to the House Judiciary Committee in support of the bill. The brief also discusses that there has actually been a decrease in divorce since many neighboring states have allowed divorce after only a minimum period of separation. The final assertion is that there is absolutely no benefit to requiring a longer separation period. Instead, 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.

Click here to read the stance of the PA Bar Association.

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Involuntary Termination of Parental Rights

Parental rights can generally only be dissolved in conjunction with an adoption matter. A biological parent can consent to an adoption, voluntarily relinquish their rights or be subject to involuntary termination. Pursuant to 23 Pa.C.S. § 2511, there are nine (9) grounds for involuntary termination of parental rights:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent as caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(3) The parent is the presumptive but not the natural father of the child.

(4) The child is in the custody of an agency, having been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search and the parent does not claim the child within three months after the child is found.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(6) In the case of a newborn child, the parent knows or has reason to know of the child’s birth, does not reside with the child, has not married the child’s other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain substantial and continuing contact with the child and has failed during the same four-month period to provide substantial financial support for the child.

(7) The parent is the father of a child conceived as a result of a rape or incest.

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

(9) The parent has been convicted of one of the following in which the victim was a child of the parent: criminal homicide, aggravated assault, a comparable crime in a different jurisdiction, or any attempt/conspiracy to commit the above.

Grounds for termination can be cited as part of an adoption petition if the adoption is kinship. In a non-kinship matter, the petitions for adoption and termination should be separate. The termination will be scheduled first. If successful, no notice must be given to the former biological parents as far as the subsequent adoption proceedings.

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Determining Marital Status

If there is a question as to the validity of a marriage, Section 3306 of the Divorce Code discusses how either party may file for declaratory judgment with the court at any time. The court will declare the marriage valid or invalid based on the proof presented. Under 23 Pa C.S. 3304, void marriages include those where (1) one of the spouses is still in a former marriage, (2) the parties are too closely related, (3) either of the parties was incapable of consenting to the marriage, usually due to mental disorder, or (4) either of the parties was under 18 if claiming a common law marriage. A void marriage is one that is invalid because it violates some public policy.

Under 23 Pa C.S. 3305 grounds for voidable marriage include: (1) where either party is under 16 without court approval, (2) where either party is 16 or 17 without court approval or parental consent, (3) where either party was under the influence of alcohol or drugs at the time of the ceremony impacting their ability to consent, (4) either of the parties is incurably impotent, or (5) there was fraud, duress, coercion or force to secure the marriage. A voidable marriage is presumptively valid unless a party challenges it. There is a sixty day time limit to pursue an annulment from the ceremony date for several of the voidable grounds. Additionally, regarding void and voidable marriages, the right to annulment is lost if there is subsequent confirmation of the marriage after becoming aware of the potential grounds for annulment. Where an annulment is to be granted, equitable distribution and potential support claims may proceed just as in a divorce action.

Click here to read about grounds for divorce.

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