Archive for the ‘Child Custody’ Category
Posted in A Free Consultation, Child Custody, Child support, Custody, Divorce, Family Law, Lawyers, Pennsylvania, PFA, Pittburgh, Uncategorized, tagged beaver, butler, custody, divorce, pfa, protection from abuse, support, washington on April 24, 2012 | 2 Comments »
Nothing says “I love you” like a restraining order, or at least, that’s the title of a song by post-hardcore band Our Last Night. All kidding aside, a restraining order – a/k/a Protection From Abuse Act Order (“PFA”) – is serious business.
No level of abuse should be tolerated. Any amount of abuse is too much. For this reason, the Pennsylvania legislature created the concept of a PFA, which creates an immediate right to have a person tossed in jail, if he violates either the temporary or “permanent” PFA.
A PFA can save a person’s life.
Unfortunately, abuse can go both ways. It is not uncommon for the PFA procedures in PA to be abused by those looking to go on the offense against a current (or former lover) or family member when no “abuse” or fear of abuse ever existed. So long as a person is willing to testify that another person (related by blood, prior sexual relations, or affinity) was physically abused or made serious threats, the entry of a PFA order is a near certainty unless the party defending the action has some pretty reliable evidence to the contrary. This is the case mostly because the courts err on the side of separating the parties and entering a PFA.
Meeting the threshold amount of evidence to obtain a PFA is easy for those willing to distort the truth. The term “abuse” is defined pretty liberally in the PFA statute:
23 Pa.C.S. § 6102 (2012)
§ 6102. Definitions.
(a) General rule. –The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Abuse.” –The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). (Emphasis added).
As you can see, a PFA can be warranted where no physical harm results. Rather, an “attempt” to cause “fear” is enough. The definition is broad enough to include stalking or repeated interaction, which could mean having coffee at the same Starbucks as the Plaintiff, by chance or routine, every day, or driving past the plaintiff’s home if it’s on the defendant’s way to work every day, so long as that puts the plaintiff in “fear.” (Do you see how this well-meaning statute can be abused?)
The blind entry of a PFA can cause enormous prejudice to the defendant, who may have been innocent of any wrongdoing. A PFA can be used to wreak the following on an innocent person, who may face one or all of the following through an improper PFA:
Immediate eviction from his residence with the Plaintiff
Loss of freedom to travel down a street where the Plaintiff lives, even if it’s on the defendant’s way to work
Loss of the right to possess firearms even if the Defendant is and avid gun collector or merchant of weapons for a living
An order for child support even though no formal claim for support had been filed through the family courts
The court costs of the PFA (over $200),
The PFA can be served on the Defendant by sheriff or constable when the defendant is at work, ruining his reputation;
The PFA can be used for leverage in any custody, divorce, or support proceedings, and
The court may impose other relief that the court deems fair and just.
Most employers only search one’s criminal records via the state police website, but some also check the civil dockets for blemishes. We know for sure that those applying for section 8 housing will be subject to a search of PFA instances.
It is possible to have a temporary PFA expunged from the civil docket (which based on only one party’s side of the story, also called ex parte), but not a permanent PFA. This is because, expungement applies to the removal of charges and accusations, not actual findings of fact related to a full hearing where all parties may attend. Thus, if you are found to be an abuser following a hearing where you had a chance to testify, that record cannot be removed. Thus, to be clear, if you go to court on the PFA and lose such that it becomes permanent, then the permanent PFA cannot be expunged. An excellent analysis of this concept appears in a blog by Linda A. Kerns, who practices in Eastern PA.
For these reason, if you have had a PFA served on you, you should immediately seek experienced counsel to defend the action or get the opposing party to accept some deal short of permanent PFA. We get at least one call a month from some poor, unfortunate individual who decided to attend the hearing on the PFA alone (or with a family “friend” attorney who doesn’t handle these cases regularly) and came away from the process with a 3 year PFA against him.
Also keep in mind that, if you go to a hearing and lose, the PFA order is not the only public record, but rather, the testimony against you is also recorded and a transcript of the same can be ordered by anyone with a beef against you, so he or she can read about all the different forms of abuse according to at least one witness under oath.
We strongly recommend that you seek experienced counsel in defending against any PFA action. Out East, consider Linda A. Kerns, Esquire, who wrote about whether a PFA can be expunged. In Harrisburg and Millersburg, consider Shaffer & Engle, which did a nice analysis of “bad faith PFA“s on their blog. For all matters in Western PA including Pittsburgh (and all of Allegheny County and the surrounding Counties – Beaver, Butler, Washington, consider our Pittsburgh PFA lawyers.
Call or email our law firm any time for a free consultation.
At the end of 2011, the custody laws in Pennsylvania were changed. The courts still look at the best interest of the child above all. Interestingly, however, Section 5328 of the new legislation sets forth 15 factors that a court must consider when awarding custody.
We practice in Western PA. Out in Eastern PA, the law firm of Karen Ann Ulmer, PC (“Eastern PA”) was among the first to blog about this and set forth the 15 factors as follows:
(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.
Eastern PA aptly noted:
“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.”
Great post, Eastern PA!
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?
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.
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.
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.
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