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Archive for the ‘Child support’ Category

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.
A PFA also creates a mark on a person’s permanent and public record.  Although a PFA does not create a criminal record per se (unless one violates the PFA and is found guilty of indirect criminal contempt), a PFA does appear on the civil docket as a finding of abuse, which the world can see, because the civil docket is public record.

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.

412.780.0008

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Pennsylvania has long clung to the presumption of paternity by estoppel, which means simply:  if you hold yourself out as the parent, you are the parent, even if you are not the biological parent.  Under this fiction, DNA evidence is not admissible.  Some states are moving away from this somewhat archaic presumption.    In the holding of K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), the Pennsylvania Supreme Court recently declined an opportunity to do away with the presumption entirely, but it did add one ripple: the courts must look at the best interest of the child when applying the presumption of paternity by estoppel.  There, the Supreme Court of Pennsylvania deemed that paternity in Pennsylvania by estoppel will continue in this Commonwealth.  There, the biological mother acknowledged that she had an extramarital affair with the alleged father during the course of her marriage to her husband. Testing did establish that her husband was not the biological father of the child.

The alleged biological father asserted paternity by estoppel to defeat the child support claim and argued that the husband had established the father relationship with the child, adding that his involvement in the child’s life had been insignificant. Also, the mother and her husband remained married even though they were separated.

The alleged father maintained that he has little involvement in the child’s life and that the mother remained married to her husband, though separated.  This prompted the lower court and Superior Court to grant his motion to dismiss the support action against him.  The husband remained responsible for the child’s support.  But then the Supreme Court of Pennsylvania had a look and reversed the lower court’s decision.  Specifically the Supreme Court remanded to the lower court for proceedings with the following directive:  the purpose of paternity by estoppel is to keep families intact and protect the best interests of the child. It was then up to the lower court to evaluate the best interest of the child based on a new evidentiary hearing.   This left in tact the doctrine of paternity by estoppel but it must be supported by a consideration of the best interest of the child.

Before this new provision in the law, the party seeking to challenge an order to pay child support based on paternity by estoppel could defend on two grounds:  (1) show that he did not hold himself out as the parent; or (2) show that he relied on the other parent’s false and fraudulent claim that he was the biological father, when he was not.  This issue came up a few years ago in a case that was litigated in Allegheny County before the Honorable Judge Wetch and appealed to the Superior Court of Pennsylvania.  The case was also profiled in the New York Times.

In that case, the mother was married to her husband, Mike, when she had a child (“L”) with another man, Rob.  Her husband held himself out as the child’s father even though he knew he was not, eventually, and claimed that he had only done so because his wife had lied and told him was, in fact, the biological father.

This is how the New York Times described the case:

The real issue, her attorney, Todd Elliott, told the court, was that Mike didn’t really want to stop being L.’s father.  ‘Every time he was given a chance to deny paternity, he never did,’ Elliott said, according to the transcript. ‘He signed consent order after consent order because he wanted to be the father. The testimony here today is that he only did it because of some philanthropic belief that he wanted to step up. That’s not true. . . . He fought for every other weekend. He fought for having her overnight on a Wednesday. He fought for having her not be able to leave the jurisdiction. These aren’t things that someone does because they are just philanthropic. He wants to be the dad; he just doesn’t want to pay support.’ Elliott’s accusation infuriated Mike, who believed it accurately described Rob, not him.

The hearing officer was persuaded by Elliott’s argument: Mike hadn’t been defrauded into admitting paternity after the DNA tests, and he had hardly abandoned L. after he learned the truth. Still, the officer ruled, Rob had also acted “essentially as a parent.” During the hearing, Stephanie testified that Rob was the biological father, and that he and L. loved each other. He had taken her on vacations to Disney World, Las Vegas and the ocean, celebrated at her birthday parties, bought her gifts and attended her soccer games and school activities. As such, the hearing officer ordered, Rob should help pay her support, too.

Despite being named a defendant in Mike’s lawsuit, neither Rob nor any legal representative for him ever showed up in court or contested the rulings. But Stephanie did. Her attorney argued in an appeal that parenthood shared by one mother and two fathers “would lead to a strange and unworkable situation.” So, the lawyer reasoned, Rob should not be forced to help pay for L.’s care. David Wecht, the state-court judge charged with hearing the appeal, agreed with Stephanie’s conclusions, albeit for different reasons. Pennsylvania law did not allow for the recognition of two fathers of the same child, he wrote in his opinion, and thus he could not order two men to pay paternal support. Wecht concluded that under the law, Mike was L.’s legal father. Fraud is the only way to rebut the key paternity doctrine, and Wecht, like the hearing officer, concluded fraud did not induce Mike to continue as L.’s dad after the DNA results; love did.

The superior court agreed with and fully upheld the lower court’s decision.  The Supreme Court of Pennsylvania declined to hear the case.  There, however, the issue was whether the lower court erred in failing to find fraud, not whether the presumption of paternity by estoppel should be abandoned or abrogated, which did not occur until recently, in K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), as set forth above, and now the court may — and must — consider the best interest of the child when applying paternity by estoppel.

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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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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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