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Archive for December, 2009

The White House EmblemThe National Christmas Tree

Our firm takes pride in helping familes grow through the loving concept of adoption.  This process involves the legal termination of rights of the biological parent(s) followed by a proceeding for adoption of the child into a new family.  

Aside from the legal services we offer, we want our clients and the general public to know that adoption is an important concept in our society and it should be embraced and supported.  November was National Adoption Month.  It came and went without much national attention, unfortunately.

Each year, the American President issues a proclamation about adoption in the United States.  This year, in October, Barack Obama penned a proclamation that November was National Adoption Month.  As reported on Adoption.com, the President’s proclamation honored families that strengthened America through adoption and recommitted the United States to reducing the number of children currently awaiting adoption in the United States.   Here is the Proclamation signed October 30, 2009:

All children deserve a safe, loving family to protect and care for them. In America, thousands of young people are waiting for that opportunity. During National Adoption Month, we honor those families that have strengthened America through adoption, and we recommit to reducing the number of children awaiting adoption into loving families.

America is a country rich in resources and filled with countless caring men and women who hope to adopt. These individuals come from all walks of life, united in their commitment to love a child who is in need of the protective arms of a parent. We must do more to ensure that adoption is a viable option for them. By continually opening up the doors to adoption, and supporting full equality in adoption laws for all American families, we allow more children to find the permanent homes they yearn for and deserve.

This month, we also focus on children in foster care. These children are not in the system by their own choosing, but are forced into it by unfortunate or tragic circumstances. These young people have specific needs and require unique support. Federal, State, and local governments, communities, and individuals all have a role to play in ensuring that foster children have the resources and encouragement they need to realize their hopes and dreams.

The course of our future will depend on what we do to help the next generation of Americans succeed. This month, we celebrate those families brought together by adoption and renew our commitments to children in the foster care system.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim November 2009 as National Adoption Month. I call upon all Americans to observe this month by reaching out to support and honor adoptive families, as well as to participate actively in efforts to find permanent homes for waiting children.

IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of October, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.

BARACK OBAMA

Through the Holidays and into 2010, let us all remember that strong, loving families are the backbone of our civiliation.  Those who are noble enough and brave enough to adopt deserve our collective support and recognition all year long.

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The Western Pennsylvania lawyers at Elliott & Davis, PC understand the impact that any family law matter can  have on your life.  We are intimately familiar with events such as divorce, custody disputes, and support claims and other family law matters.  We all know that a divorce is a life changing experience.  However, some practical advice can make the transition a little easier.   The blogosphere has advice for you!

Here’s ten tips that I found on the LegalMatch blog.  Parenthetically, LegalMatch picked up these tips from the Kentucky Family Law Blog, which received the tips from  Nolo Press. These tips were originally authored by Emily Doskow

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

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As CNN and others have reported, the marriage between Joh and Kate Gosselin has terminated in divorce, but does that mean the saga is over? Apparently, they have an agreement on custody.  They will have shared physical custody.  Kate will have primary at the marital residence and Jon will see the children on some sort of schedule. 

In Pennsylvania, a claim for custody involves a series of steps that can involve a mediation, followed by a conference, followed by an actual custody trial.  There is no right to trial by jury in Pennsylvania, constitutionally.  Hence, Pennsylvania the legislature can require that certain kinds of cases are always heard non-jury (by a judge), which is precisely the case in matters involving divorce, equitable distribution, custody, and support in Pennsylvania. 

Plus, custody orders are always modifiable, depending upon the best interest of the children.  Does this mean that Jon and Kate should be in court every few months to craft and re-craft their custody agreement to accommodate their changing lifestyles? 

Absolutely not. 

In every case, our firm recommends that the parties avoid court whenever possible, especially in the area of custody.  In order for parents to raise their children in a healthy environment, the parents need to learn to agree to a plan of cooperative management for their children.   This is especially true when parents are separated or divorced.  The courts are not supposed to be a third-party co-manager in daily disputes.  In fact, a judge will be quick to express his or her frustration with your case if it appears that you are seeking judicial intervention before genuinely trying to work out your issue. 

This does not mean you should never utilize the courts to sort out a significant dispute.  Even parties who negotiate a well written custody agreement may later come to find that their lives have changed beyond their control, which may require court intervention or a new agreement.  For example, one party may lose is job through no fault of his own and find that his best opportunity for new employment exists 1500 miles away from the children.  Obviously, this could dramatically impair that parent’s ability to follow a pre-existing agreement.  In this scenario and many others like it, the courthouse doors will remain open to conduct a relocation hearing, to evaluate how custody rights must change.   

There are a variety of other issues that call for judicial intervention, notwithstanding the existence of a well-drafted custody agreement.  For example, consider the issue of legal custody.  Unlike physical custody which involves the number of overnights each parent has with children, legal custody deals with each parents’ respective right to have a say in how the child is raised:  health care, education, religion, and other issues involve a choice by parents.  Here, even with an iron-clad custody agreement about custody, over time, there may be new issues that surface in the child’s life which require mutual input from each parent.  Even happy couples can disagree on these matters.   

So what does all this mean for Jon and Kate?

It means they have a long future ahead of them if they fail to communicate effectively.  The number of children they have, coupled with the public way in which they live their lives, will multiple the range of custody issues they face by eight fold.  For example, the direction of Jon’s career remains uncertain.  He was recently ordered to avoid making public appearances for money because, allegedly, it violates his contract with A&E.  Hence, perhaps even Jon does not know where he’ll be living or working in the future.  As for Kate, it is rumored that she will do her own reality show for A&E (without the kids).  It remains to be seen who will be spending time with these kids, which could impact custody issues.  Plus, the sheer number of kids will trigger issues about how best to care for them.  Again, the parents will need to agree…or go to court. 

For Jon and Kate, the problems have already begun to surface.

It has been reported that Jon objected to Kate doing the future show titled “Kate Plus Eight”  involving Kate and the children (without Jon).  Upon receiving this objection, A&E believed it was left with no choice but to honor Jon’s objection because he has parental rights.  A&E believes that the consent of both parents is needed for A&E to move forward with filming these children in the future.  So, already, we’re seeing a relationship between custodial rights and the respective careers of Jon, Kate, and the real stars of their monstrosity of a TV show:  the “Plus Eight.”  Allegedly, the custody agreement signed between Jon and Kate allows the parent with primary physical custody (Kate) to make decisions about the childrens’ involvement in taping episodes of the show.

Still, assuming that clause exists, it will not trump the “best interest of the children” standard.  Remember, custody agreements are always modifiable.  If one of the children so much as whispers that the show is interfering with his eduction, the show is gone – clause or no clause.  Hopefully, Jon and Kate will re-take control of their lives and come to stand for something other than making money from having outsiders film their childrens’ most precious moments.  Imagine the children growing up, going on dates, and coming to learn that their most personal private moments growing up are located on DVD collection of countless strangers from coast to coast.     

This saga could stop short of a total train wreck, but it will take some dramatic changes on the part of the parents.  First of all, the parents will need to start putting aside some money for the children (if they haven’t already) if it is true that the children have “worked” on the show for now compensation set aside specifically for them.  Plus, the parents will need to select careers that allow them to be parents first.  In short, the parents must learn to put the children first to the point where they become an example of how to make good decisions in the face of great difficulty. 

Unfortunately, for the public, if Jon and Kate make the changes that need to be made, the public may lose interest in them.  So far, the story line has been about seeing kids on TV or reading about the parents’ difficulties in the tabloids. If the children live private lives and the parents focus on just being parents, then the plot line might fizzle out.  So, ironically, if Jon and Kate finally do what they need to do, it may be too late for anyone to learn anything from it.  But at least the children have a chance to learn, and the parents will ultimately spend less time in court.

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This is a question that divorce attorneys rarely get to ask their clients.  In divorce cases, the usual questions we have are:  Where do you reside (for purposes of jurisdiction)? When were you married? How many assets did you accumulate together?   

But rarely do we ask:  what were you thinking.  Admittedly, the answer is not all that important for purposes of representation.  Such information is generally not relevant in divorce proceedings.  Plus, it is not professional (or even necessary) for a lawyer to judge his client’s thinking or conduct.  We all make mistakes and a lawyer owes a fiduciary duty to his client. 

But on this blog, at least, I can ask Tiger Woods:  what in the name of Lady Justice were you thinking when you cheated with a parade of not-so-trustworthy women?  How could you have led those women to think that they (each of them) had a future with you?  Seriously, were you hoping to clone yourself at some point?     

As a disclaimer, we cannot verify the truth of any of the allegations about Tiger Woods right now.  We can only say what is being reported about him as a public figure.   He is innocent until proven otherwise  (or until an incriminating voice mail message sounding exactly like his gets played and replayed by every media outlet from the local news to Bill O’Reilly).  The infamous voice mail, as first reported in US Magazine and blogged about in the Huffington Post complete with audio, goes something like this:

Hey, it’s Tiger. I need you to do me a huge favor. Can you please take your name off your phone? My wife went through my phone and may be calling you. So if you can, please take your name off that. Just have it as a number on the voicemail, just have it as your telephone number. You got to do this for me. Huge. Quickly. Bye.

Seriously, Tiger, what were you thinking?  We may never know, unfortunately.  His counsel may never get to ask either, assuming Tiger Woods has retained counsel to evaluate issues such as divorce, custody, and support.     

A more broad question for ourselves (as we follow this story) is:  why is this particular story so compelling?  For this writer, the compelling nature of Tiger Woods’ current saga has nothing to do with his money, his fame, or the “fallen hero” sub-plot we keep hearing.  Those are just topics to fill news columns while the story remains red-hot on the forefront of peoples’ minds. 

The real issue is control…or lack of it.     

How could someone so rich, famous, and disciplined in the precision sport of golf lose control over not only his marriage, but also the nature in which the public learns of his ongoing pattern of antics?  Did he really think that his true lifestyle would remain a secret indefinitely?  How could someone so hard working and dedicated to his craft let his life spin out of control so quickly? 

He desperately needed (and still needs) to take control of this story about himself, if only to deflate the suspense that continues to build.   From the beginning, all he had to do was give the media something — some fact or revelation.   But he lost the opportunity to score a few points because he stonewalled.  In fact, he never did come clean.  He merely admitted to vague indiscretions after the above voice mail surfaced.  

And the public remains in suspense about how far Tiger Woods will fall.  Will he come to terms with his new public image?  Contrast Tiger Woods’ bungling in this case versuse the stark admissions by Hugh Grant (on the Tonight Show) and David Letterman (on his own program).  These days, Hugh Grant has a new movie coming out.  David Letterman is winning the late night battle for ratings.

Tiger Woods, on the other hand, has exited the sport of golf…by choice.  Granted, Tiger Woods still has time.  But he keeps making things worse.  His decision to leave the golfing world only raises a new questions:   when will he return?  Once he returns, will he play at the same level he once did?  The above questions could have been avoided if Tiger Woods had just committed himself to doing what he does best:  being great on the golf course.   

On second thought, maybe this writer has it all wrong.  Maybe Tiger Woods is, and always was, in control.  Perhaps he wanted the story to come out the way it did.  This could be no different than Tom Cruise’s couch jumping antics on the Oprah Winfrey Show.  Maybe Tiger Woods is really saying:   

“Leave me alone.  Can’t I just be myself?  I was scared to tell you that I’m not perfect.   You’re a fool for thinking I was perfect, anyway.  You watched me play golf and give a few short interviews after each game.   You saw me on TV.  Big deal.  Somehow it was enough for you to buy more than your usual share of products by Gillette and Nike, merely by seeing my face in the ads.  Maybe you’re the one who should ask yourself: 

What were you thinking?

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The New York Times has recently reported on an unusual child support case.  There, a mother in an intact family cheated on her husband and became pregnant.  The husband acted as a father to the child even after the husband suspected the child was not his.  Husband and wife separated.  The husband agreed to pay child support while he continued to act as the father by exercising shared physical custody.

Everything was OK until the mother married the man with whom she had cheated.  Then,  the ex-husband was enraged.  He filed a petition to terminate child support, only, had already acknowledged paternity.  Plus, he had acted as the father at all material times.   He asserted the fraud defense to paternity.  He reasoned that he had been defrauded by his wife into thinking that the biological father would never act as a father toward the child and, hence, for that reason (and that reason alone) he agreed to act as the father. 

The case went to trial before a hearing officer in Allegheny County, Pennsylvania.  The ex-husband’s claim of fraud was found to be not credible.  The hearing officer also found that the ex-husband had acknowledged paternity and had held himself out as the father long enough for the presumption of paternity to apply.  Accordingly, the ex-husband was ordered to continue paying child support and the child resided primarily with the biological mother and the alleged biological father. 

The ex-husband filed exceptions to the hearing officer’s recommendations and the exceptions were dismissed.  Then, the ex-husband appealed to the Superior Court of Pennsylvania, which upheld the lower court’s decision.  A request was made that the Supreme Court hear the case; however, the request was denied.  Ultimately, the ex-husband was found responsible to continuing to pay child support based on his acknowledgment of paternity and because of paternity by estoppel:  holding himself out as the biological father. 

To this day, the ex-husband continues to exercise his partial custody rights.  He sees the child on weekends; however, to date, the alleged biological father has never been joined as a party in this case, nor has he been ordered to undergo a paternity test for evaluation of whether he should be at least partially responsible for some portion of the child’s expenses that other payers cannot afford, for example. 

In the media, this case has been portrayed as an example of gross inequity.  The New York Times article on November 22, 2009 includes a lengthy description of the case from the standpoint of how DNA testing is changing the role of fatherhood.  A local CBS News outlet in Pittsburgh (KDKA News) is running on a story on the issues, as well.  The million dollar question has been:  why should the ex-husband have to continue paying child support for a child that’s not his?

The answer is simple.   The ex-husband has to pay support because he acknowledged paternity and because he is the father.  OK, maybe not in the biological sense.  But he fought for (and won) the right to partial physical custody (seeing the child on weekends).  He also fought for (and won) the right to shared legal custody, meaning, he has a voice in deciding where the child gets medical care, what religion she’ll be exposed to, what schools she’ll attend, whether she can leave the jurisdiction, et cetera.  These are all substantial parental rights, which the ex-husband continues to exercise to this day. 

And with every right comes a responsibility…

The law firm of Elliott & Davis, PC was involved in the above because we represented the mother. The other question we get is:  OK, but why hasn’t the alleged biological father been made to pay support?  The answer is a little more complicated.  First of all, the supposed biological father is paying support…sort of.  Inasmuch as the alleged biological father lives with the child and provides food for the household, he is contributing to the child’s daily expenses to a certain degree.   But what happens if a big-ticket expense comes up for the child (such as a rare medical condition not covered by any health insurance plan, for example), and what if the ex-husband and mother can’t afford the expense?In that case, can the alleged biological father be pulled into the case as a responsible party? 

The answer is, no.  

Once paternity is established in Pennsylvania (by consent or by operation of law), the court’s cannot consider DNA evidence absent fraud.  Here, the ex-husband both acknowledged paternity and he held himself out as the father.  Plus, the child support system in PA is not designed for the situation created by the facts in this case. Perhaps the law in this area should change.  But for right now, the legal fiction of paternity by estoppel is alive and well in Pennsylvania and the courts will recognize only one payor-“dad.”   

Parenthetically, in closing, we would also like to extend a warm recognition of the work by professor Turley and his meaningful blog post concerning recent law in Pennsylvania.

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A couple days ago, the local CBS affiliate in Las Vegas reported that the District Attorney’s office out there generated $100,000 from parents delinquent on outstanding child support obligations.   

How was it done?  

Evidently, the DA had offered amnesty in the form of relief from impending bench warrants against essentially “dead beat” parents.  On the surface, this sounds like a windfall for custodial parents seeking support.  However, in this particular case, the use of government resources can be questioned.  Evidently, to get the above-referenced 100K in outstanding child support, the DA’s office had to meet with 400 delinquent payors and negotiate payment plans.  That works out to only $250 per dead-beat payor (assuming that these 400 people were the source of the above-referenced 100K).  In our firm’s Western Pennsylvania practice, we see arrears cases frequently; the typical amount owed in arrears is usually well in excess of 250 bucks, especially where the case has escalated to where a bench warrant has been issued for non-payment.  That said, each case turns on the facts.  In certain cases, getting $250 from someone who would rather face jail time than pay child support may be considered a victory, of sorts. 

Either way, it is encouraging that the Las Vegas DA worked so hard to reach out to delinquent parents to pull them back into the fray, even if the net amount received may not have been substantial.   In our practice, in too many cases we see parents feel (and act) disconnected from the system.   Many parents harbor hostility toward they very system designed to protect their children.  This hostility often spills over into the realm of custody.  Dialogue is important and it should be encouraged at every turn in all types of family law issues. Thus, any effort by the Courts (or the DA’s office in this case) that effectively engages delinquent payors should be commended.  

So, congrats to the Las Vegas DA for bringing disassociated parents back into the mix!

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Welcome to Pittsburgh Divorce Law Blog!  We hope that you find this to be an engaging and informative platform for news, information, and dialogue relating to Western PA Divorce Law, Custody Law, and Support Law. 

This blog is a service of Elliott & Davis, PC.  Elliott & Davis is a full service law firm with a practice devoted to matrimonial law issues, as well as corporate law, general litigation, and trademark law.  We will try to keep this blog light and lively although the subject matter of family law is often challenging for the litigants. 

Please check back for updates!

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