Step-parent and Kinship Adoptions

In Pennsylvania adoptions are handled through the Orphan’s Court. The rules and procedures for an adoption can be found in the Orphan’s Court Rules under Rule 15. Each county may have a set of local rules pertaining to adoption which should also be reviewed and complied with where necessary. The primary, and in this instance the initial, requirement is the adoption petition. An adoption petition should include the name, age, residence history, marital status, other dependants, occupation, religion, race, relationship to adoptee, and state of health of all petitioners as well as the natural parents. The petition should also state the name, sex, race, age, date of birth, place of birth, religion, and residence history for the adoptee. Each adoptee requires a separate petition. The intended name of the adoptee following the adoption should be included as well. Consents of the natural parents and an original birth certificate of the adoptee should be attached as exhibits. Consent of the natural parents is not required if you are involuntarily terminating their rights. If that is the case you should indicate why involuntary termination is appropriate based on 23 Pa C.S. 2511(a) within the petition. An often used provision under 23 Pa. C.S. 2511 is that the natural parent has failed to perform parental duties or evidenced a settled purpose of relinquishing parental claim to the child for a period in excess of six months immediately preceding the filing of the petition.

The birth certificate to be attached to the petition should be a “complete” or “long-form” birth certificate that includes the full names and ages of the natural parents at the time of birth. You must specifically request a birth certificate with the parents’ ages or you will likely not receive the correct birth certificate. All prospective adoptive parents must submit to a criminal and child abuse background check in the context of the adoption. This must be completed before the petition is filed and also included as an exhibit. Once filed, the petition must be served on all interested parties to give proper notice as required under the law. This would entail either personal service or service by certified mail, return receipt requested, at least 10 days prior to the date set for a hearing. Certification of service must be filed with the court either before or at the time of the hearing. At the hearing, the Judge will make sure all the requirements under the law have been met and there is no objection by the natural parent(s) whose rights are being terminated. If so, the adoption can be granted.

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Qualified Domestic Relations Order

A qualified domestic relations order, or QDRO for short, is a document often used in the context of splitting assets in a divorce to rollover a portion of one party’s retirement plan/benefit to the other party. QDROs are frequently utilized when pensions, 401ks and other retirement benefits have been classified as marital in nature and therefore up for distribution at the end of the marriage. The benefit of a QDRO is that it allows a tax-free transfer of the funds from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. For example, it may be that the party receiving a benefit as a result of a QDRO, often termed the alternate payee, cannot begin to do so until the initial participant in the plan begins to do so. The receiving party may or may not be able to designate an alternate successor if they die before the benefits begin to pay out. Or, the plan may provide the receiving party can only designate a survivor beneficiary that would be able to receive the balance of their portion of the benefit if they have started receiving the benefit before they die. The receiving party’s benefit may or may not be affected by the death of the initial participant or his/her early withdrawal penalty, if applicable.

It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also likely benefit from having an attorney review the terms of the QDRO as well before signing off on it and submitting it to the plan. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of a company that routinely drafts QDROs to ensure the language is correct and all requirements are met.

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Jurisdiction/Venue in Divorce

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Under Pennsylvania law, one of the parties to the divorce action must have been a bona fide resident of Pennsylvania for at least six months prior to the commencement of the divorce. Bona fide residence is defined as actual residence with domiciliary intent. Domicile denotes the place where a person has his or her true, fixed, permanent home with the intention of returning after any absence. In other words, where an individual sleeps, takes her meals, receives mail, and stores personal possession.

Generally, an action may only be brought in the county where one of the party resides. There are two exceptions allowing a divorce action to proceed in a different county including by mutual agreement of the parties in writing or by participating in the action started in a different county. If two divorce actions are commenced within 90 days of each other, the county where a party resides or where the last marital residence was located gets to determine which county should handle the matter. If neither county is the location of the last marital residence and no party resides in either county, the county that received a complaint in divorce first can make the determination as far as which county will proceed.

Parties should be careful about agreeing to, or participating in, divorce actions outside of their home counties if property distribution and/or other issues such as custody and support may be raised during the divorce. A divorce action may need to be transferred to the county where the bulk of the property is located or where the children reside for custody or where one of the parties reside for support. This will likely result in the expense of having to file a new complaint in the appropriate county as well as the expense and delay of petitioning to have the matter transferred. On the other hand, parties with no issues relating to the divorce may benefit from a cheaper filing fee by choosing a county other than their own for the divorce action.

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National Child Support Awareness Month

August is National Child Support Awareness Month. President Clinton began the month of recognition in 1995 as part of his welfare reform agenda. The goal was to improve the collection of child support payments by widening the use of sanctions including wage garnishment and suspending driver’s licenses and passports for parents with child support arrears. As of today in Pennsylvania, wage garnishment is virtually always utilized to ensure child support payments can be collected. Garnishments apply not only to the typical income which would be received from an employer, but also to social security and/or veterans benefits. Other methods of securing support payments include intercept of tax return refunds and even lottery winnings. Imprisonment is also a widely available sanction in the context of enforcement of child support obligations.

There has been backlash ever since President Clinton advocated for taking a tougher stance on non-paying parents. For one, the demands of child support are sometimes greater than the paying parent’s actual income. Or, support obligations pile up because the child support obligation does not automatically readjust to account for periods of disability, unemployment or incarceration of the paying parent. However, single parents do need the help of the other parent to provide a comfortable lifestyle for their child(ren). Seven states have joined in a pilot program that focuses on fostering financial stability for the paying parent so that they will be able to meet their support obligation without ending up destitute themselves. Hopefully, a balance can be struck between the seemingly competing interests of adequately providing for children as well as some financial reserve for the paying parent.

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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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