Embryos are Marital Property

Frozen embyros are considered marital property and hence, technically up for division in a divorce, however there is some disagreement on exactly how the “property” should be dealt with. This is a relatively new issue in family law and different states have applied different methods for resolving the matter. The Pennsylvania Superior Court recently released a decision regarding the marital status of frozen pre-embryos in Reber v. Reiss, 2012 PA Super 86. In Reber, the court had to determine what should happen to the frozen pre-embyros of a divorced couple. Wife wanted to use the frozen pre-embryos in order to have children of her own whereas Husband wanted the frozen pre-embryos either destroyed or donated for research.

In reaching its decision, the Superior Court considered how other states have dealt with a similar issue. Some states have focused on whether there is a prior agreement between the parties concerning disposition of the pre-embyros in the event of divorce and if so, will uphold the agreement as enforceable. At the same time, other states have held that enforcing such an agreement is a violation of public policy and have declined to do so. The Supreme Court of Iowa follows a mutual consent model requiring both parties to agree on disposition, however, the Superior Court of Pennsylvania did not find this model feasible since parties would not be in court in the first place if they could agree. The approach that was ultimately adopted calls for the court to balance the interests of the parties.

In applying the balancing approach, the court found that Wife’s interest in procreation using the frozen pre-embyros outweighed Husband’s interest against procreation. This decision was based primarily on evidence that the pre-embryos were likely Wife’s only opportunity to procreate along with testimony that Wife would allow Husband to be involved and wouldn’t pursue support in response to the concerns raised by Husband. The court did acknowledge that the party against procreation should normally prevail in a balancing test, however, due to the unique facts of the case, the scales tipped in Wife’s favor. It also seems that the court would’ve likely enforced an agreement on the issue if there had been one. Accordingly, parties who intend to undergo in vitro fertilization should draft a clear, unambiguous agreement as to the disposition of embryos upon separation, divorce or death, or else be subject to a balancing approach by the court.

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Two-Year Separation – Divorce

Most parties pursuing divorce will choose to proceed with no-fault grounds for divorce. A no-fault divorce simply means there has been an irretrievable breakdown of the marriage. There are two different ways to establish an irretrievable breakdown of the marriage under the Divorce Code. First, both parties may consent to the divorce after 90 days from when the complaint was filed and served. This is referred to as a 90-day mutual consent divorce. Alternatively, if one party won’t consent, the other party can move forward after the parties have been “separated” for two years. This is referred to as a 2-year separation divorce.

Separation does not mean the parties have to live separately. Many parties still reside in the same home but are considered to be “separate” based on the definition provided by the Divorce Code. Section 3103 of the Divorce Code defines “Separate and apart” as follows: “Cessation of cohabitation, whether living in the same residence or not. In the event a complaint in divorce is filed and served, it shall be presumed that the parties commenced to live separate and apart not later than the date that the complaint was served.”

Accordingly, the date the divorce complaint is filed will generally be accepted as the date of separation regardless of whether the parties continue to live together or not. However, the date of separation can be an even earlier date. For example, the date one party does move out of the marital home is usually a clear indication the marriage is over, and hence, an acceptable date of separation. Alternatively, even if the parties continue to reside together, a date of separation can be established when one party makes it clear to the other party that the marriage is over by stating so clearly or even reducing it to writing. The party alleging 2-year separation will have to submit an affidavit certifying the date of separation. The other party has an opportunity to object and a hearing may be held if necessary to determine the appropriate date of separation. Accordingly, be sure that the other party is keenly aware of your intended separation, especially if you will continue to reside together and/or hold off on filing for divorce.

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Basics of 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.

The amount of support reflected in the guidelines is based on the average expenditures of children for food, housing, transportation and other necessary miscellaneous items. The guidelines make financial support of children a top priority. Accordingly, outside of the basic needs of the party providing support, the child’s needs in terms of support come first. Pennsylvania has established a self-support reserve based on the federal poverty guidelines. The current self-support reserve is $867 and a guideline amount of support that would leave a party with less than this sum will not be upheld. Instead, the award of support would be modified to leave the party with at least $867 per month.

In sum, parties should understand child support is a serious obligation. There is not much room for argument as far as what amount of support is appropriate. There is a presumption, albeit rebuttable, that the amount of support indicated by the guidelines is the appropriate amount. Further, Pennsylvania does maintain that the support of children is a top priority and is often unwillingly to change the support number based on the financial hardship it may inflict on the party owing support outside of the self-support reserve.

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Role of Gender in Custody

Many parents who are considering custody litigation still assume or inquire as to a gender preference in custody. It is true that moms used to be the preferred custodians for minor children over dads. During the early twentieth century the custody laws of nearly all the states endorsed this view as well. There was a shared misconception that moms would be the better parents based on their natural nurturing instincts. This was especially true of young children or children of “tender years.” In fact, a legal principle termed the “tender years doctrine” called for mothers to have custody of children until they were at least approaching their teenage years.

However, at this point, there are no remaining custody laws that include a presumption in favor of one parent over the other based solely on gender. The Supreme Court of the United States found that the tender years doctrine was a violation of the Fourteenth amendment of the Constitution, providing for equal protection for all, since it impermissibly discriminated against men based on their gender. The tender years doctrine was replaced in most states with an analysis based on the best interests of the child. Pennsylvania is among the states that uses a best interest analysis and the statute discussing the factors to be considered under a best interests analysis is 23 Pa. C.S. 5328. So whether you are a mom or dad, your opportunity to receive custody is the same. It is important to become familiar with the relevant factors in a custody decision and determine which factors weigh in your favor in order to present a winning argument for custody.

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Common Law Marriage

Common law marriage could be established in Pennsylvania up until January 1, 2005. All common law marriages established before that date are recognized as valid marriages. In order to establish a common law marriage, the parties must have exchanged words of intent to be married and held themselves out to their community as being married. Often, the parties also lived together for some length of time. While this is not a requirement in and of itself, it plays into the couple having held themselves out as married. Once a common law marriage is established, it can only be resolved by divorce just as with any regular marriage. Pennsylvania is presently in a transition stage in that while no new common law marriages can be created, there are still inquiries into whether they were previously created and accordingly, how the ancillary issues should be handled, i.e. divorce versus civil suit.

Moser v. Renninger, 2012 PA Super 59 (2011) discusses the procedure and timing for establishing or denying common law marriage.

In Moser v. Renninger, Wife filed a divorce complaint on November 19, 2010 stating that her and Husband had entered into a valid common law marriage in 1985. Husband subsequently filed an Action for Declaratory Relief asking the court to declare that no common law marriage existed. After an evidentiary hearing on the matter the court held a common law marriage was in fact established on June 8, 1985. Husband immediately sought to appeal the court’s finding that common law marriage existed. Husband’s appeal was denied on the basis that it was premature. Because the issue of whether there was a common law marriage was raised in the context of the divorce, the court found that Husband could not file an appeal until the divorce matter is final. If, however, the issue of common law marriage had been addressed separately, an appeal following the decision would be appropriate as the entire matter would be concluded.

This method may be considered favorable in that it allows the entirety of the divorce to be resolved without the delay and disruption of an appeal. On the other hand, it may be a waste of the court’s time to resolve the divorce and all related issues if their ruling that the parties were in fact common law married is later overturned.

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Application of Custody Relocation Law

Section 5337 of the new custody laws sets out the procedures and standards for relocation requests. E.D. v. M.P., 2011 PA Super. 238, is one of the first cases to apply the new relocation law. In E.D. v. M.P., Mother appealed after the lower court granted Father’s relocation on the grounds that Father didn’t comply with the provisions of Sec. 5337 among other issues.

First, the Superior Court found that the new law did apply in this instance since Father filed his petition for special relief in the form of relocation on January 25, 2011 and the new law came into effect on January 24, 2011. Under the new law, the first error was Father’s filing of a petition and Mother’s filing of an answer. Under Sec. 5337 (c) regarding notice of relocation, the initial step procedurally is for the party requesting relocation to send notice to all other interested parties by certified mail, return receipt requested a certain number of days prior to the date set for relocation. Included with the notice should be a counter-affidavit that the opposing party can complete indicating whether or not they agree or disagree with the relocation and/or the modified schedule. If there is any opposition, a hearing will be needed. The counter-affidavit evidencing opposition should be filed with the court and served on the party requesting relocation in the same manner as received; by certified mail, return receipt requested. The next error relates to Sec. 5337 (g) which calls for a hearing to occur before relocation unless exigent circumstance exist. In E.D. v. M.P., the lower court granted Father’s request to relocate immediately without any finding or allegation of exigent circumstances.

Further, Sec. 5337(h) outlines the factors to be considered before a relocation is granted. Those factors include: (1) Nature, quality, extent of involvement and duration of child’s relationship with party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life; (2) Age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child; (3) Feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering logistics and financial circumstance of the parties; (4) Child’s preference, taking into consideration the age and maturity of the child; (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party; (6) Whether the relocation will enhance the general quality of life for the party seeking relocation, including, but not limited to, financial or emotional benefit or educational opportunity; (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity; (8) The reasons and motivation of each party for seeking or opposing the relocation; (9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party; and (10) Any other factor affecting the best interest of the child. The party proposing relocation has the burden of establishing that the relocation will serve the best interests of the child. Each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent it. The Superior Court agreed with Mother that the lower court failed to consider all the factors under Sec. 5337(h) in reaching its decision.

Ultimately, the case was remanded to the lower court for further proceedings applying the applicable laws. The decision indicates that the Superior Court will be diligent in scrutinizing decisions to determine if they have followed the provisions of the new law. This is true in relocation just as it is in standard custody decisions under Sec. 5328 of the custody laws.

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Evolving Issues in Family Law

Below are summaries of some of the most recent decisions on various family law topics.

Paternity by Estoppel – K.E.M. v. P.C.S.

In this case, Appellant, mother of G.L.M., brought an action for support against Appelle, the alleged father of G.L.M. Appellant was married to H.M.M. at the time G.L.M. was born. Further, H.M.M. had supported the child and acted as a father figure to G.L.M. for most of the child’s life. Appellee filed a motion to dismiss the support action on the basis of a presumption of paternity and paternity by estoppel.

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. In this case, H.M.M. submitted to a paternity test which ruled him out as the father. Accordingly, the presumption of paternity was defeated.

Paternity by estoppel acts to impose an obligation on the party who holds themselves out as a father to the child and supports the child to continue to support the child. Appellee’s argument that H.M.M. had acted as G.L.M.’s father prompted the lower court and Superior Court to grant his motion to dismiss the support action against him and continue to hold H.M.M. responsible for G.L.M.’s support.

The Supreme Court of Pennsylvania ultimately reversed the decision and remanded back to the lower court for further proceedings. Specifically, the Supreme Court held that the purpose of paternity by estoppel is to keep families intact and protect the best interest of the child by shielding them from claims of illegitimacy and, potentially, a broken family. Accordingly, the court would need to be convinced that it was in the best interests of G.L.M. to continue to recognize Appellant’s husband, H.M.M., as the father. No such evidence was presented at the hearing. In summary, paternity by estoppel is still a viable principle in Pennsylvania, however, it must be supported by an analysis of what’s in the child’s best interests to succeed.

Custody Relocation – L.A.M. v. C.R.

In this case, the appeal challenged the lower court’s decision to grant mother’s petition to relocate to Boston with the children on the basis that the provisions of the new custody law were not applied. The Superior Court upheld the lower court’s decision finding that the provisions of the new custody law did not have to be complied with since mother’s petition to relocate was filed before the new laws came into effect. The Appellant argues, however, that the hearing took place after the new laws came into effect.

The crux of the issue is how to interpret the what constitutes a proceeding under the new law. Any proceeding commenced after the effective date of the law is to be governed by the new law while any proceeding commenced before the effective date of the law is to be governed by the law in effect at the time the proceeding was initiated. The lower court found, and Superior Court affirmed, that mother’s petition was the determinative proceeding and since it was filed before the effective date of the new law, the old law should govern at the hearing.

Judge Donohue disagrees with the majority and posits that the provisions of the new custody laws should have governed over the hearing. Judge Donohue’s interpretation categorizes the hearing as a separate proceeding from the petition. Accordingly, since the hearing occurred after the effective date of the new law, it should be governed by the new law. Judge Donohue argues that this interpretation of the term proceeding allows for the “broadest possible application of the procedures and legal standards in the new Act.”

Second, Judge Donohue believes the trial court erred in allowing the mother to relocate. Under the framework of the new law which arguably should have applied, there were ten factors the trial court should have considered before ruling on the relocation pursuant to 23 Pa C.S. § 5337(h). The trial court failed to consider all the factors under the statute and for that Judge Donohue argues it erred as a matter of law in reaching its decision.

Furthermore, Judge Donohue argues the trial court did not even consider the necessary factors under the old law as outlined in Gruber. Specifically, the trial court concluded the relocation would be in the best interests of the children and substantially improve the quality of life for mother and children without evidence supporting the same. Specifically, mother did not have a job or a place to live lined up in Boston. Further, mother argued the move would also allow her to continue her education but she had not been accepted into any graduate programs in Boston. Finally, Judge Donohue was not convinced that an adequate alternative custody order could be established based on the heavy involvement of father in the children’s lives and mother’s lack of income or other resources to share transportation in the event of a move.

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New Child Custody Act – Factors to Consider when Awarding Custody

The custody laws in Pennsylvania were recently revamped with a new set of statutes regarding custody coming into effect in 2011. Any custody award is still to be based on the best interests of the child. Section 5328 of the new law lays out 15 factors to be considered when awarding custody in addition to any relevant factor.

The enumerated factors include:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(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.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(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.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. Therefore, the court must go through each factor that it considered and explain why it decided as it did. So far, the Superior Court has been strict in upholding this requirement. In J.R.M. v. J.E.A., the court awarded primary custody to the mother and father appealed on the basis that the trial court did not consider the 16 factors listed in Section 5328. 2011 Pa Super 263 (2011). The Superior Court granted the appeal, finding that the trial court did not properly consider the factors listed in the statute. Accordingly, all parties in a custody action should be prepared to argue on all of the relevant factors and also ensure that the court addresses all relevant factors in their decision.

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