Paternity in Family Law

When an unmarried woman has a child, paternity will need to be established before a father can be listed on the birth certificate, before the mother can seek support from the father and/or before standing for custody can be established. Establishing paternity can be as simple as the father executing an acknowledgment of paternity. The acknowledgment indicates the father is waiving his rights to any genetic testing or trial on the issue of paternity. If a father is unwilling to execute an acknowledgment or is simply unsure of the paternity of the child, genetic testing can be conducted so that the DNA results can be examined. Both parents will be ordered to participate in genetic testing. Failure to appear by the father can result in a court order declaring him as the father by default. Failure to appear by the mother can result in the court dismissing an action for support. 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.

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 results indicate 99% probability of paternity. If paternity is established by court order, the decision is generally not immediately appealable. Instead, the appropriate time to appeal on the issue of paternity would be after a subsequent final child support or custody order. There is one exception to this rule based on paternity by estoppel. Paternity by estoppel recognizes a man as the father based on his role in the child’s life rather than the biological connection. The Pennsylvania Supreme Court has recognized that paternity by estoppel is immediately appealable so as to protect the established parent-child relationship. In the most recent case, genetic testing proved that a child born to a married woman was not her husband’s child but rather the product of an affair. The paramour tried to file for custody and genetic testing proved he was the father however the court would not allow the custody order to go into effect due to the fact the husband had raised the child all along.

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Contempt of Court

Be it divorce, custody or support, once a court order is put in place, any violation of that court order can be considered contempt. For example, if a custody order provides that the parents are to exchange custody every Wednesday and the exchange never occurs to the fault of one party, the faulting party is in contempt. The consequences of being held in contempt can vary. 23 Pa. C.S. 5323 (g) regarding contempt of custody provides for any one of the following as punishment: imprisonment for a period not to exceed six months, a fine not to exceed $500, probation for a period not to exceed six months; and/or counsel fees and costs. In practice, based on the severity of the case, the Judge may just give a verbal warning or may suspend custody until the court order is complied with.

Contempt of a support order occurs when a party fails to keep up with their support hearing. At a support contempt hearing, the non-compliant party will have an opportunity to explain why they are not current with their support. In the event they are unemployed, the court may inquire into why they are not working, their physical ability or inability to work, and what attempts to find employment have been made. There may be contempt of an order in a divorce matter both while the divorce is still pending and after the divorce. For example, if one party succeeds in getting exclusive possession of the home during the divorce and the other party attempts to re-enter the home, there is a basis for contempt. Post-divorce contempt usually involves one party failing to follow through with their obligations under a settlement agreement or divorce judgment.

 

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Protection From Abuse

A party may file a Protection from Abuse petition in the event of abuse, meaning physical violence or the threat thereof as well as stalking or any other course of conduct which would place a person in fear of bodily injury. A Protection from Abuse (PFA) petition requires the petitioner to identify the defendant, state the incidents constituting the “abuse” as well as any prior history of similar incidents, provide notice of any weapons involved, and set out the relief requested. Depending on the nature and severity of the allegations, a temporary PFA order may be put in place almost immediately to prohibit contact between the parties until a full hearing can be held. Often a hearing will be held in approx. 7-10 days if not sooner. The petitioner must ensure the Defendant is served with the Petition, Notice of Hearing and temporary order, if applicable, prior to the hearing. The local sheriff can be contacted to effectuate the service.

At the hearing, the party pursuing a PFA order must establish by a preponderance of the evidence that some “abuse”, as defined above, occurred. A preponderance of the evidence means more likely than not. Remedies for a successful PFA petition can include having the Defendant removed from a residence that was previously shared, restrictions on contact for up to 3 years, either directly or indirectly, relinquishment of firearms or other weapons, reimbursement for related expenses or out of pocket costs suffered, temporary support, and in some cases, a custody schedule. It is possible to list multiple persons in need of protection under a single PFA petition including children, if applicable. Violations of PFA result in criminal charges depending on the nature of the violation.

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Pet Custody Battles

Many people consider their pets as members of the family and accordingly, when the family breaks up, custody of the pets can become an issue. The Today Show recently covered a story of a man who had already spent $60,000 in a custody battle over his dog previously shared with his ex-girlfriend. While pets may be considered members of the family from the perspective of the owners, the courts in Pennsylvania deal with pets the same way as they deal with other inanimate personal property in the event of a divorce.

First, a count for Equitable Distribution must be raised in the context of a divorce in order to get the court involved in dividing any property. There are generally two options available when it comes to how property will be divided. First, the parties can reach an agreement on how they will divide property and submit this written agreement to the court so that in the event either party does not comply, the disgruntled party can file for contempt and the court can assist in enforcing the agreement. The other option when it comes to property division is to go to a hearing and let the court decide. If you go this route, the court will likely give the pet to one spouse or the other just as it would any other personal property such as furniture or TVs. It is not likely to get involved in creating a schedule to continue to share the pet post-divorce.

The great thing about an agreement is that it can be as specific as the parties want. The courts rarely get involved in the content of agreements that are knowingly and voluntarily entered into and treat them as binding just as they would any other contract. Therefore, an agreement could provide for a custody schedule more similar to one you would normally see with children. For example, the spouses may decide to split custody of the family pet and lay out the terms of when they will exchange custody back and forth (i.e. every two weeks, every month, etc.). Or, the parties may even agree that the schedule for family pet will coincide with the schedule for their minor children if applicable.

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Today Show story on pet custody battle

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Alimony 101

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is largely based on the incomes of the parties but may also be affected by the distribution of the other assets, if any. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. As previously alluded to, an alimony provision within an agreement between the parties may not be modified in the absence of a specific provision allowing such a modification within the agreement.

Generally, the length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length of the alimony as they so agree. Adultery by a party will act as a bar to alimony.

The duration of alimony should be limited to a reasonable period of time for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by obtaining appropriate employment or developing an appropriate employable skill. A party seeking a longer or shorter duration of alimony can petition the court to modify its order based on the factors of Section 501 (c).

The factors to be considered by the court include: (1) The relative earnings and earning capacities of the parties; (2) The ages, and the physical, mental and emotional conditions of the parties; (3) The sources of income of both parties including but not limited to medical, retirement, insurance of other benefits; (4) The expectancies and inheritances of the parties; (5) The duration of the marriage; (6) The contribution by one party to the education, training or increased earning power of the other party; (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home; (8) The standard of living of the parties established during the marriage; (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) The relative assets and liabilities of the parties; (11) The property brought to the marriage by either party; (12) The contribution of a spouse as homemaker; (13) The relative needs of the parties; (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

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Easier Transitions for Military Families

First Lady Michelle Obama has been promoting a law that would make it easier for military spouses to maintain gainful employment in spite of their often transient lives. The law makes it easier for military servicemembers and their spouses to transfer out-of-state occupational licenses so they can continue working in their profession without significant delay after relocating. Just last week, Illinois became the 23rd state in the country to pass the legislation.

Without such legislation in place, many military spouses are forced to take odd jobs to pay the bills while they deal with the red tape of having an occupational license transferred. Often, it can take several months or more to have the licenses transferred based on the cumbersome paperwork still required in some states.

First Lady Obama took up this initiative to help support military families back in February of 2012. Prior to February, only 11 states had similar legislation on the books. Pennsylvania is one of the states that has yet to pass legislation favorable to military spouses looking to continue their careers despite relocation.

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Custody Relocation and Alternative Forms of Visitation

Pennsylvania’s custody relocation statute, 23 PA C.S. 5337, requires the party seeking relocation to get court approval or the other parent’s permission prior to relocation. A relocation is defined as any move that would “significantly impair the ability of the nonrelocating party to exercise custodial rights.” 23 Pa C.S. 5322. 25 percent of the 35 million children with separated, divorced or single parents have a parent that lives a significant distance from the other parent, limiting the amount of traditional custody time with the non-custodial parent. In addition to giving notice of the proposed relocation and petitioning the court if the other party won’t consent, the party seeking relocation is to submit a proposed order outlining the custody schedule in the event of a relocation. As with any custody decision, the party seeking relocation must show how the relocation is in the child’s best interests. A party seeking relocation should use the proposed order to demonstrate their genuine intent to ensure the nonrelocating party will still have a strong relationship with the child(ren) as a Judge will usually believe maintaining a strong parent-child relationship is in the child’s best interests. This responsibility to prove that a strong parent-child relationship will continue has become easier with the development of social media and video calling services. In fact, the term “virtual visitation” has been coined to describe the opportunities for parents and children to remain touch through the use of technology.

There are several different programs that make it easy for people who live in different places to stay in touch. Skype has become a popular service which allows people to see each other while talking to one another other the internet. FaceTime is a software program available on many cell phones which also allows simultaneous live video streaming in the context of a phone call. Many use Facebook to keep in touch by sharing photos, sending messages, etc. It is now commonplace to include terms for virtual visitations in custody orders where the parents live in different places. Such an order would lay out how often the virtual visits will occur and how long they will last (i.e. Parties will Skype on Tuesdays at 8pm for 30 minutes). A Judge may even order a party to get the appropriate software or equipment to ensure such virtual visitation can take place if they do not have the necessary components already. Several states have laws on the books expressly governing virtual visitation. While Pennsylvania does not expressly reference virtual visitation in its statutes, Judges in the Commonwealth have been including provisions on virtual visitation in custody orders made in the context of relocation.

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Obesity as Custody Factor

The issue of obesity among both children and adults is a regular topic in the news. It is also being addressed more and more often in the realm of family law. Parents in a custody dispute may allege the other parent is not a fit parent because of their own weight problems. The argument then follows that the parent will not be able to provide proper care for the child because he or she won’t be able to keep up with the child. Alternatively, parents may hurl allegations at each other because of the child’s weight problems. Here, arguments may be made that a parent is not looking out for the best interest of the child because he or she allows the child to eat predominantly unhealthy things or doesn’t promote adequate exercise. This failure to ensure an appropriate diet and active lifestyle puts the child at risk for developing serious medical problems such as diabetes or heart disease. It may also subject the child to additional ridicule from their peers damaging their self-esteem and psychological well-being.

Pennsylvania specifically alludes to a child’s physical well-being as one of the factors to be considered in making a custody award based on the child’s best interests. This factor was added when the custody laws were revamped effective January 2011. 23 PA CS §5328 (10) mandates the court to consider which party is more likely to attend to the daily physical, emotional, developmental and special needs of the child. Accordingly, it is relevant to discuss concerns with one parent’s weight and its potential to hinder their ability to provide basic hands-on care for the child. It is also relevant to raise the issue of how a party’s parenting is or isn’t beneficial to the child’s physical well-being. Child obesity is becoming a real epidemic with potential lifelong consequences and a Judge would be remiss not to consider which parent is taking the appropriate measures to provide a healthier lifestyle for their child.

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Pre-Nuptial Agreements

Given the statistics on the likelihood of divorce, many couples are opting to enter into pre-nuptial agreements to protect their rights in the event of a divorce. 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.

Since a pre-nuptial agreement is a contract is must meet several requirements to be held valid. 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. For these reason, the agreement should be signed well before the wedding to avoid any challenge to the agreement that a party was forced to sign because the wedding date was fast approaching. Finally, steps should be taken to make sure the agreement is not invalidated on the basis of fraud, duress and/or misrepresentation. Any challenge under the above listed causes of action will require a fact-based analysis with the standard being a preponderance of the evidence, or more likely than not. Overall, it is difficult to overturn a pre-nuptial agreement once entered into, however, it can provide some peace of mind if the parties do not end up living happily ever after.

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Health Insurance as part of Support

One frequent question in the context of divorce is what will happen to health insurance coverage in the context of a divorce. Generally, a spouse cannot drop the other spouse during the context of the divorce. Health insurance is often considered in the context of support and spouses are obligated to provide support for each other during the marriage. Once divorced, however, you cannot remain on your ex-spouse’s health insurance plan. If you are unable to obtain alternate health insurance on your own right away you can look into COBRA coverage.

The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives the employee providing the health insurance and their ex-spouse who has lost their health benefits the right to choose to continue health benefits for a limited period of time and under certain circumstances. A spouse who elects COBRA coverage following a divorce may be required to pay the entire premium for coverage, up to 102 percent of the cost to the plan. Additionally, COBRA coverage is only temporary and generally only lasts for 36 months. Only employers with 20 or more employees in the prior year who provide group health insurance are required to abide by COBRA and provide the opportunity for a temporary extension of health coverage.

If there are children between the parties, the children may remain under the health insurance coverage presently provided. There may be an adjustment to any child support award based on who is paying the premiums on the health insurance for the children. There is a 60 day window following the termination of coverage in which to notify the health insurance provider whether or not you are pursuing COBRA coverage.

Support

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