Guardian Ad Litem

A guardian ad litem (GAL) is an attorney the court appoints to represent the best interests, and often times the legal interests, of a child in a court proceeding. Once appointed, the GAL should participate in all future proceedings as necessary to continue to ensure the child’s interest. By law, the GAL is mandated to meet with the child as soon as possible following appointment. Additionally, the GAL should review all the relevant records related to the case and conduct further investigation as deemed necessary. Further investigation may include speaking with the child’s parents and/or guardians as well as interviewing other potential witnesses.

The GAL’s ultimate responsibility to the court is to make specific recommendations for an order that will address the child’s safety and provide for his or her best interests. The GAL’s responsibility as it relates to the child is to explain the proceedings to the child in a manner that they can understand. Additionally, the GAL is to explain the child’s position to the court along with any evidence in support of their position. A GAL must be appointed in any case where it is alleged that the child is a dependent. A GAL may be appointed in other instances such as custody cases or Protection from Abuse cases involving the child. It is possible that a child can be appointed a GAL to protect their best interests and a separate attorney to protect their legal interests.

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Non-Marital Property

Section 3501 of the Divorce Code defines what will be considered marital property versus what will be considered non-marital property. Specifically, marital property will include all property acquired by either party from the date of marriage through the date of separation. There is a presumption all property acquired during the marriage is marital regardless of how title is held (e.g. individually vs. jointly). It will also include the increase of value of any non-marital property during the course of the marriage. 23 Pa C.S. 3501 goes on to list what property will not be considered marital under the statute. Property acquired prior to the marriage or in exchange for said property is not marital as well as property expressly excluded by valid written agreement of the parties at any time.

Property received as a gift from any person other than the other spouse is not marital along with any property acquired after final separation but potentially prior to the entry of a divorce decree as long as marital property was not used in its acquisition. Any inheritance received is treated as a gift and will also be deemed non-marital so long as it is not subsequently commingled with marital funds. The court will also not look at property that was disposed of in good faith while the marriage was intact. An example would be property sold to a family member for its fair market value. Veterans’ benefits cannot be attached, levied or seized except in the case where a portion of the veteran’s retirement pay was waived in exchange for the benefits. Finally, any payment from a cause of action or lawsuit where the underlying claim occurred before the marriage or after separation.

Click here to read more on Equitable Distribution.

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New Rules for Montgomery County

Montgomery County has just adopted a number of changes to their local rules regarding divorce matters. Where there are pending claims for equitable distribution, the moving party should file a Motion for Entry of Grounds and Appointment of an Equitable Distribution Master. The moving party will now have to pay a $400 fee at the time the Motion is filed. The Motion should certify that all discovery is complete. A list of all the assets and debts at issue along with their corresponding values must also be included. Finally, the initial pre-hearing statement should be attached including a completed Inventory and Appraisement. Once the Motion and all its required accompaniments are filed, a copy of the same should be served on the other party. A Certificate of Service should then be completed and filed with the court.

The non-moving party has forty-five (45) days from the date of service to file their own pre-hearing statement and Inventory and Appraisement. Similarly, a copy should be served on the moving party and a Certificate of Service should be filed with the court. The non-moving party must also certify that all discovery is complete and include a list of all assets and debts with values as of the date of filing the certification. The failure of either party to comply the Rule may result in sanctions including the disallowance of testimony or introduction of evidence at the time of the equitable distribution proceedings from the party that failed to comply. Where equitable distribution, alimony or counsel fees is not at issue or has settled by agreement and grounds have been established, the moving party can file a praecipe to transmit the record for divorce decree.

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Same-Sex Marriage

Just short of a year following the US Supreme Court decision that the federal statute, the Defense of Marriage Act (DOMA), was unconstitutional, Pennsylvania has followed suit in recognizing its own marriage laws are also unconstitutional. In a decision rendered May 20, 2014, the Honorable John E. Jones, III, sitting for the US District Court in the Middle District on the case of Whitewood v. Michael Wolf, ruled that two of Pennsylvania’s laws regarding marriage were unconstitutional on the basis that they violated the Due Process and Equal Protection clauses of the Fourteenth amendment. 23 Pa. C.S. 1102, limiting marriage to heterosexuals, and 23 Pa C.S. 1704, prohibiting recognition of homosexual marriages even where the couples were legally married elsewhere, are no longer enforceable.

The case of Whitewood v. Michael Wolf was filed last July by 11 homosexual couples, five of which were unmarried and hoping to be married in Pennsylvania, and six couples who were legally married elsewhere but reside in Pennsylvania. The due process clause guarantees that all citizens shall have certain fundamental rights and the court held the right to marry the person of your choice is a fundamental right. The equal protection clause prohibits a state from denying a person in its jurisdiction equal protection of the laws. The Plaintiffs were successful in arguing for a heightened level of scrutiny to be applied as the classification on the basis of sexual orientation was quasi-suspect. Accordingly, Defendants were left with the burden to demonstrate an “exceedingly persuasive justification” as to how the statute prohibiting homosexual marriage served an important government objective. The court found the Defendants were unable to carry that burden. As the closing remark in the opinion by Judge Jones states: “We are a better people that what these laws represent, and it is time to discard them into the ash heap of history.” 

Click here to read more on issues regarding same-sex couples.

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Self Support Reserve

The self support reserve is the amount of money a parent paying support needs to have available to support themselves. It is intended to ensure low-income parties can meet their own basic needs as well as provide an incentive for continued employment. In Pennsylvania, the self-support reserve is presently $931 a month. This number reflects the federal poverty level for one person. In calculating a support award when the party to pay support has income equal or less to the self-support reserve amount, the court can only award support after consideration of the parties’ actual financial resources and living expenses instead of a strict adherence to the guideline amount.

New Jersey also has a self-support reserve to consider in determining a support award. The self-support reserve for New Jersey is calculated based on 105% of the U.S. poverty guideline for one person. If the net income of the party paying support drops below the self support reserve after consideration of the support award, the support should be adjusted. The exception to this rule is if the custodial’s parent’s net income minus the child support award is less than half the self support reserve amount in which case there is no adjustment. A court may impute income or assign an earning capacity to a party prior to a determination on whether application of the self support reserve is appropriate.

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New Custody Rules for Chester County

Chester County has just approved a number of changes to their local rules regarding custody matters. For all custody orders, it must be stated within the order that neither party will relocate with minor children without proper consent or court approval as required under Section 5337. For all initial complaints for custody or petitions for modification, the criminal history affidavit must be included. The non-moving party should file their criminal history affidavit within 10 days following service. After filing of the complaint or modification petition, the parties must attend an approved parenting class and provide proof of their attendance. Presently, the court approved parenting program is “Children in Between.” In some instances, the parties may also be ordered to attend a mediation session.

All temporary orders for custody should include language that it will become permanent in 180 days after filing of the underlying petition or 90 days after a conference, whichever is earlier, unless a demand for trial is filed including a certificate of trial readiness and pretrial statement. The pretrial statement must include a summary of the issues, concise statement of facts, list of all potential witnesses, exhibits that may be offered, a proposed final order, and an updated criminal history verification. An interim order shall be entered at the conference. Objections to the interim order shall be put in writing and filed with the prothonotary to be scheduled for a hearing. If the interim order would result in a change in primary custody, a request for a stay must be filed within 5 days.

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National Foster Care Month

May is National Foster Care month. Foster parents play an important role in providing stability for children in their transition from their natural parents to a permanent home. Bucks County Children and Youth Social Service Agency oversees the foster care program for the county. The Agency offers informational meetings throughout the county on various dates for interested volunteers. Bucks County presently has a need for additional volunteers. Approximately one-third of the children in need of foster care in Bucks County are placed out of the county due to the shortage of available foster parents.

Foster parents are given training by the county. Additional support includes financial and medical assistance for the foster child. The children benefit from having the option of residing with a foster family instead of being placed in an institution or group home. It is also beneficial to match the foster child with a family of similar cultural and/or ethnic background.
If you would like to request more information on becoming a foster parent, or if you would like to set up an in-home orientation, please email your name, address and phone number to Roxanne Watkins-Hall [email protected] or call 215-348-6997.You can also visit the website at: http://www.buckscounty.org/government/HumanServices/ChildrenandYouth/FosterParent

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Matrimonial Early Settlement Panels

Pursuant to NJ Court Rule 5:5-5, all counties in the state are required to maintain an Early Settlement Panel (ESP) program. The goal of the program is to promote resolution prior to trial. Most divorce cases will settle prior to trial either at an ESP or otherwise. The panels are usually comprised of two-three attorneys experienced in family law. Additionally, some counties offer specialized panels for complex cases wherein the panel will feature some of the most experienced attorneys practicing matrimonial law. Each party should submit a memo to the panel either prior to or at the time of the ESP. The memo should outline the issues in the case and narrow which issues need to be resolved as well as any issues that have already been settled.

Issues to be considered during an ESP include alimony, child support, college and private school costs, equitable distribution, debts, life insurance, tax issues, and counsel fees. It is important to make sure discovery is complete prior to the ESP to ensure the panelists can be effective and provide a comprehensive recommendation. Additionally, parties should be sure their Case Information Sheet is completed and up-to-date. Cases that settle at the panel can conclude that day. The terms of the agreement can be reduced to writing or put on the record and the divorce decree can be issued. It’s possible parties can be directed to an ESP more than once. If the ESP doesn’t work, the next step is likely another form of alternate dispute resolution, e.g. economic mediation or binding arbitration.

Click here to read more on NJ Family Law.

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Autism Awareness Month

April is autism awareness month. April has been set aside as the month to raise awareness for autism since the 1970’s. Autism is a group of complex disorders affecting brain development. Generally, signs of autism are most visible in toddlers and may include difficulty in social interaction, and communication. The CDC estimates that autism affects 1 in 68 children representing a significant increase over the past forty years. Early diagnosis/intervention and behavioral therapy are proven methods for helping children with autism which is why widespread awareness is key.

Dealing with children with any sort of special needs or developmental issues requires a great deal of attention, dedication, and commitment. Several of the factors to be considered in any custody award can be particularly relevant in this instance. Specifically, the following factors can be key: (3) The parental duties performed by each party on behalf of the child.(4) The need for stability and continuity in the child’s education, family life and community life.(5) The availability of extended family.(6) The child’s sibling relationships.(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
These factors can be even more important with a child who may struggle socially and have a greater need for stability/structure as well as familiar faces and familiar environments.

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Contested Paternity Case

The current statute relating to paternity is 23 Pa.C.S. §4343. As it relates to testing to determine paternity, the statute provides: (c) Genetic Tests. (1) Upon the request of any party to an action to establish paternity, supported by a sworn statement from the party, the court or domestic relations section shall require the child and the parties to submit to genetic tests. The domestic relations section shall obtain an additional genetic test upon the request and advance payment by any party who contests the initial test. Tests results alone are not sufficient to establish paternity. Instead, the parties must stipulate in writing that the test results prove paternity or the court must make an order on paternity after reviewing the test results.

As a matter of science, it is not necessary to have both parents of the child tested. Either parent can be simply tested against the child at issue to establish clear results as to whether they are a biological parent. However, the courts should make a practice of routinely testing both parents as indicated by the statute. In a recent paternity case, the Father filed a Complaint for Paternity after he separated from his girlfriend who had become pregnant. He never had an opportunity to see the child after birth. Following a hearing, genetic testing was ordered. Father and child were tested but Mother refused to be tested. The results excluded Father as a biological parent. Father, believing there may have been foul play, insisted on Mother being tested. Following a second hearing, Mother was ordered to be tested as well to prove she was in fact the biological parent of the child she brought in for testing. The results from her test excluded her as a biological parent as well. This means Mother brought a child in for testing that she knew was not her child, likely in an attempt to thwart Father’s claim of paternity. Currently, a third hearing is being requested to ensure the correct child is presented for testing. This case should be a lesson to the court to enforce the provision of the statute requiring both parties submit to genetic tests in any action for paternity.

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