Disestablishing Paternity

It is difficult to avoid the obligations that come with parenting a child. Paternity can be established in a number of ways including by acknowledgment, by genetic testing, or by estoppel. Once an acknowledgment of paternity is signed, it is very difficult for a father to then try to allege the child is not his. An acknowledgment acts as conclusive evidence that the person who signed the acknowledgment is in fact the father of any subject child(ren). A court order on paternity will follow if the genetic test results indicate 99% probability of paternity. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection.

A presumption of paternity arises where a child is born into an intact marriage. In that circumstance, absent clear and convincing evidence to the contrary, the husband will be deemed to be the father. However, in K.E.M. v. P.C.S., 38 A.3d 798 (Pa. 2012), Husband, though he had supported the child, acted as a father figure and was married to Wife at the time of birth, submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated. The establishment of paternity imposes the policies of the Uniform Parentage Act including strict liability for child support. In Wallis v. Smith, 22 P.3d 682 (2001), Father tried to avoid his support obligation on the basis that Mother had committed contraceptive fraud. In other words, the parties had an agreement that Mother would be responsible for birth control and subsequently stopped taking the birth control without alerting Father. The courts refused to relieve Father of his support obligation despite the parties’ alleged agreement. No state recognizes contraceptive fraud or failure to accurately practice birth control as a defense to child support.

Click here to read more on child support.

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Protection from Abuse Claims in Bucks County, PA

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Today is PFA day in Bucks County, PA. Historically, it was evident by the overcrowded and flowing areas of the courthouse. PFAs will now be heard in the new Bucks County Justice Center, but somehow that will not change the fact that is one of the most crowded days in court. A Protection from Abuse starts as a civil action where one person who must meet the relationship requirement under the PFA statute files and accuses another person of abuse, usually physical, but can include stalking, harassment. If you are a Petitioner in Bucks County, you have options to help you file that include a free service offered through the Women’s Place or through Legal Aid. Not only will they assist you with filing your claim, they will also represent you or assign you an attorney in court. They will have someone also accompany you to court so you do not have to go alone and this person will provide support to you. You also have the option of hiring a private attorney who will be devoted exclusively to your case that day. They can assist you by preparing your petition and making sure all the necessary facts are set forth in your petition. You can ask for protection for up to three years and this protection can include absolutely no contact to restricted contact if you have children. While the court can award custody and support as part of a PFA, you should file both those actions separately as well, especially support which will lapse if you do not file for it.

If you are accused of a PFA in Bucks County, PA, you will be served with a Petition setting forth the allegations. Sometimes you will not be served until the night before. One thing is evident, you will have less than a week’s notice to prepare and defend yourself. If you arrive to Court without an attorney, the Bucks County Bar Association will have volunteer defense attorneys ready to assist you in your defense. They will have several cases, not just yours and they will not contact you until the day of the hearing. You have the option of hiring a private attorney to assist you in your defense as well. This attorney, while paid, will be devoted exclusively to your case and will meet with you and talk to you before you court date learning the facts of your case.

While it is true that a Protection from Abuse is a civil action, meaning if the court finds you guilty or you agree without guilt to an order, you are not going to jail. Some people are of the thought that since they do not want to talk to the other side anyway, it may be a good idea to just agree to a stay away order. In my opinion, that can be a very serious mistake. An agreed order has the same enforcement remedies as an order entered after a trial. While a Protection from Abuse is a very necessary remedy for people who are harassed, it is also a very abused area of the law. Oftentimes, skilled petitioners use it to gain leverage in a custody matter or use it for vindictiveness. Having a private attorney will help you sort this out to the Judge who is aware and looks for these motives. In those cases, it would be a mistake to agree thinking it is only civil. The reality is that any violation of a Protection from Abuse order becomes a criminal matter. It is also a public record and can affect your rights to possess a weapon during the period of time you are under an order. Depending on your job, it can also affect your security clearance. If you are foreigner, it can lead to deportation. Before you agree to anything, you need to understand all the ramifications that could occur.

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Handling Custody during bad weather/sickness, use common sense

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Oftentimes when you have a custody agreement, your agreement or order spells out specific times and meeting places for custody exchanges. Even the best crafted custody agreement, however, does not contemplate every situation that possibly could arise.  In these circumstances, you must often make a judgement call.  For example, if your child is burning up with a fever, it may not be in the best interest of your child to insist that they return to you for your designated custodial time.  You may want to consider your child and let them rest until they are up for travel.  With winter upon us, you may also find yourself required by your custody order to exchange your child in the middle of a snowstorm, or worse, blizzard.  Again, you should use your best judgement in deciding whether to follow the custody agreement.  This is why it is very important that parents be able to communicate with each other.  Oftentimes, you will need to make accommodations for the other parent.  You cannot expect a custody agreement or court order to resolve every possible scenario.  

For those parents with an ex who threatens the police or court if the custody agreement is not followed when one of these emergency circumstances arise, I would suggest that you still exercise your best judgement.  As long as it is a true emergency and you are no abusing the system and alleging your child is sick when in fact that are perfectly fine, it is not likely that you will be found in contempt but be prepared to prove it just in case. Take a photo of your child’s temperature, get a copy of the weather report for your area.  Always put the safety of your child and well being of your child first in an emergency circumstance.  That being said, it may be a good idea if the other parent misses time due to snow or an illness that you offer make up time.  The more you give, the more you get.  Mother nature does not play favorites and it could easily happen on your time.

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Why you should file a counterclaim in custody

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If you are one of the many families who are facing custody issues and you find that your ex has file a petition for custody or a petition to modify your current order, you should consider filing a counterclaim for custody. While it is true that you do not have to file an answer or a counterclaim in order for the court to decide a schedule, what happens if your ex suddenly withdraws their petition the day of the hearing?  If you do not have a counterclaim filed, then the Court will cancel the hearing since there will be no petition to hear. While this is fine if you do not want a change, it may not be so great if you were expecting to raise issues on why you need an order or why you want a change, this is not such good news. In order to prevent this from happening, you should always file a counterclaim on custody. That way, if your ex does decide to withdraw the petition filed, the Court will have to hear the case unless you also withdraw your petition.

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Non-Marital Families

The courts may recognize certain rights in relationships other than marriage. Palimony is the term for legal property and support rights arising from co-habitation. Co-habitation is not necessarily required for a palimony claim so long as there is a marital-like relationship. The default rule is that title controls ownership in the absence of a written document stating otherwise. However, the courts may recognize certain equitable doctrines to achieve fairness even if strict adherence to the written document would produce a different result. One cause of action is a constructive trust through the theory of unjust enrichment. The crux of the theory is that it would be unfair to allow the person that doesn’t have title to be excluded from the wealth they helped create.

Another equitable doctrine is quantum meruit. This doctrine posits that each party should get what they deserve. To be successful, the parties must establish that there was a reasonable expectation of receiving a benefit from the relationship. For example, a promise to support, expressed or implied, could be the subject of a quantum meruit claim. As a matter of policy, certain courts are reluctant to award any rights in non-marital relationships with the belief that it undermines the institution of marriage.

Click here to read more on rights of unmarried parties.

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Putative Spouse Doctrine

The putative spouse doctrine provides an equitable remedy where one or both spouses believed in good faith they were married and subsequently discovered the marriage wasn’t valid. The spouse that is unaware of any impediment to the marriage is the putative spouse. The equitable remedy provided more or less mirrors the relief that would be available if the parties were divorcing from a valid marriage. The purpose of the doctrine is to protect those who have an honest belief that they are married from being denied the economic and/or status related benefits of marriage including potential property division and support.

The doctrine is recognized in many states across the country as long as the key elements are met. First, there must be a proper marriage ceremony. Second, one or both parties must have a good faith belief the marriage is valid. Good faith is defined as an honest and reasonable belief. If either spouse receives information concerning the validity of the marriage, they have a duty to investigate further.

Click here to read more on division of property.

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Affidavit of Consent

Under Section 3301(c) of the Divorce Code, one way to obtain a no-fault divorce is by mutual consent of the parties ninety (90) days after filing and service of the divorce complaint. This is often the quicker option for a no-fault divorce however it is contingent on both parties signing the consent. Case law provides that a party cannot be forced to consent. This is true even if the party previously entered an agreement indicating they would timely consent to the divorce. The court has stated “[a] person has an unqualified right to change his or her mind and refuse to consent to be divorced, at least, as here, where the consent, though signed, has not been delivered or filed.” Berman v. Berman, 33 Pa. D. & C.3d 134 (1983). This position supports the Divorce Code policy of preservation of marriages wherever possible.

There is also the potential that an affidavit of consent could be withdrawn even after having been filed with the court. This is only possible if the court grants the request for withdrawal. The courts have previously referred to Rule 1920.42(c) as granting the power to deny a petition to withdraw consent. The rationale being that an affidavit of consent could always be withdrawn and there would be no reason to seek the court’s permission if withdrawals were automatic. Instead, the court laid out a standard to be used when determining whether to allow withdrawal which examines whether the affidavit was signed under duress, fraud or undue influence. Duress would include threats of physical harm or actual harm. Fraud, which must be established by clear and convincing evidence, would demonstrate a misrepresentation with the intent to induce signature to an affidavit of consent. Finally, undue influence is influence obtained by excessive persuasion or other means such that the other party lacks free will and is unable to refuse. In addition to the above factors, the court should also look at the totality of the circumstances in order to effectuate justice among the parties and fulfill the intent and purposes of the Divorce Code.

Click here to read more about grounds for divorce.

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Annulment

An annulment proceeds similar to a fault-ground divorce in terms of procedure. First, it must be established that an annulment is appropriate. Pennsylvania acknowledges annulment for void and voidable marriages. 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. In contrast, a voidable marriage is presumptively valid unless a party challenges it.

23 Pa C.S. 3305 lays out the grounds for annulment of a voidable marriage. 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. 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 more on grounds for divorce.

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Fault Grounds and Defenses

Pennsylvania has a mixed approach to divorce in that it still allows fault grounds in addition to no-fault grounds. 23 Pa CS 3301(a) lists the fault grounds for divorce as follows: (1) willful and malicious desertion, without reasonable cause, for the period of one or more years; (2) adultery; (3) cruel and barbarous treatment; (4) bigamy; (5) imprisonment following conviction for a term of two or more years; and (6) indignities to the point of life being intolerable and burdensome. The party alleging fault must prove its existence and must also establish they are the “innocent and injured spouse.”

Procedurally, when a fault ground is alleged the first step is to establish the fault has occurred. A motion for appointment of a master would need to be filed to enable a master to hear testimony on the claims. There are defenses or bars to fault grounds which could be raised. Recrimination is a defense on the basis that there is no innocent spouse and both spouses are guilty of faulty behavior. Provocation occurs where the “innocent” spouse provoked the other spouse into the faulty conduct. Comparable to provocation, connivance is a defense where it is alleged the “innocent” spouse helped to manufacture the fault grounds which are being sought. For example, on a claim of adultery, the innocent spouse hired a prostitute for their spouse. Finally, condonation is a claim that the fault ground has already been forgiven by the innocent spouse and the marital relationship resumed after the offense. After the fault grounds are established, the divorce matter can proceed on other ancillary claims such as equitable distribution.

Click here to read more on grounds for divorce.

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International Parental Kidnapping

International parental kidnapping occurs when a child is removed from the United States with the purpose of interfering with the other parent’s custodial rights. The federal law governing this issue, 18 U.S.C. §1204, defines child as a minor less than sixteen (16) years old and specifies that parental rights includes any custody rights (sole, joint, visitation) whether existing by court order, prior agreement or operation of law. There are affirmative defenses under the law which would consider if removal is pursuant to a court order, for the purpose of escaping domestic violence, or of a temporary emergency nature. Sanctions for parents found to be guilty of international kidnapping include imprisonment for up to three years.

Return of the child may be arranged through the Hague Convention of the foreign country is a signatory to the convention. Otherwise, the U.S. Department of State will try negotiation with the foreign country in an attempt to secure return of the child. With regards to U.S. custody orders, it’s good practice to provide that international travel may only be by written consent of both parties or court order. Parties should pay attention to which country the other parent intends to travel to and whether that country belongs to the Hague Convention on Civil Aspects of International Child Abduction and would recognize a U.S. custody order if necessary. Additional information on international child abduction is available through the U.S. Department of State website below.

U.S. Department of State: International Child Abduction

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