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Archive for the ‘Families’ Category

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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Legislative Action

State Senator Lisa Baker said introduced a bill that mandates no judge enter an order changing the custody arrangement of a child of a deployed military service person.  This custody law came in response to a complaint by grandparents who lived in her senatorial district and were barred from seeing their grandson during their son’s deployment  to Iraq.

The separation of children from their parents serving in the military overseas is already a challenging situation.  It gets compounded when a child is also separated from the deployed parent’s relatives.

On April 12, Governor Tom Corbett signed the bill into law in Pennsylvania.

Under the new law, a service member who is being deployed abroad may now petition the court for a temporary order to assign custody rights to his or family members while he or she is overseas.  This also means that when a service member is deployed, a judge cannot then change the custody arrangement for the child unless it finds it is in the best interest of the child to do so.

Importantly, it also allows the the family members of the deployed soldiar to step into the shoes of the serviceman or woman to exercise the same custody rights that their service member, while he or she is away, which provides a shortcut to allow involvement of extended family.

The law also eases the burden of soliders overseas in terms of attending court and conferneces. The new law specifically allows parents serving in the military overseas to testify in court via phone, videoconference or other electronic means if they can’t appear personally in court.  This law is designed to recognize the sacrafice of service persons deployed to serve their country.

This is a positive development overall for the interplay between state courts and our troops who are obeying natoinal duties.  Kudos to State Senator Lisa Baker and all those who supported this law.

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There is no easy way to identify and eliminate child abuse, unless the abusive parent comes 100% clean and decides to trust outsiders with knowledge of what’s been happening in the home.

The broader question is:  what should happen when there are mere allegations that a child has been neglected, abused, or exposed to an environment where drugs or alcohol are present?  The knee-jerk answer is simple:  get the district attorney involved, punish the parent(s) and relocate the  kids.  But the solution is not so simple.  Many parents who deeply love their children also struggle with addiction.

In most instances, a parent may need counseling of some sort in lieu of the state bursting through their front door and stripping them of their children.  Some cases are easier to decide than others.  The parent whose daily intoxication allows young children to wander the streets requires special attention, of course.  But in many other less obvious cases of neglect, it may not be realistic to completely demonize a parent at the mere suggestion of drug use or neglect.

Pennsylvania has relied heavily on county entities called CYS, which stands for Children and Youth Services.  (In Allegheny County, it’s called Children and Youth Families, or CYF.)  The job of CYS is not easy.  CYS needs to investigate to get facts from parents who are understandably reluctant to be forthright.  Hence, CYS needs to draw certain inference from little facts, in many instances.  A recent story in the news highlights the difficulties in this area.

The case involved a new mother in New Castle, Pennsylvania, who failed a drug test given at a Lawrence County Hospital.  This prompted authorities in Lawrence County to seize her newborn baby, and the mother intends to file a civil rights law suit.  But the mother has an interesting explanation for her failure of the test.

Rich Lord, of the Pittsburgh Post-Gazette, reported:

“Elizabeth Mort and Alex Rodriguez, parents of Isabella Rodriguez, have said that poppy seeds on a Dunkin Donuts everything bagel caused a false positive on an April drug test conducted by Jameson Hospital in New Castle. Poppy seeds contain opiates that are sometimes mistaken for drugs, although there are blood tests that can discern between compounds in the seeds and illegal substances.

The test result prompted Lawrence County Children and Youth Services to remove Isabella from her home the day after her discharge from the hospital, and put her in protective custody for five days.

The ACLU and attorney Patricia Dodge, of Meyer, Unkovic & Scott, plan to represent Ms. Mort in suing both the county and the hospital, according to a news release by the ACLU. Her attorneys declined to be interviewed, but a copy of the complaint to be filed today indicated that they will seek a finding that authorities need more evidence than a single drug test to remove an infant from its parents.

The complaint says the county agency is “removing newborns without any reasonable suspicion that they have been abused or are in imminent danger of abuse, in violation of parents’ fundamental constitutional rights, and Jameson is aiding and abetting that constitutional violation” by conducting tests that aren’t medically necessary.

Lawrence County Commission Chairman Steve Craig said that Children and Youth Services acted properly based on the information provided by the hospital.

“When [hospital employees] say she failed a drug test, what do you do, say, ‘Oh, well, we understand she ate a bagel?’ ” said Mr. Craig. He added that Ms. Mort told county case workers that she had a history of drug use, and called the claim that a bagel was to blame “an allegation. There’s nothing to back that up in this case.”

The complaint says Ms. Mort did not use illegal drugs while pregnant. She has no criminal record in Pennsylvania.”

To read more, go to: http://www.post-gazette.com/pg/10301/1098650-54.stm

Let’s assume that CYS got it wrong in this instance; namely, the mother had no prior record and there was no other evidence of neglect or drug use on her part in the past.  Does this mean CYS should relax its vigilance any?

The truth is, there is no quick and easy solution to the problem of suspected abuse. Modern society does not have any easy answer.  At the gut-wrenching suggestion of abuse, it’s tempting to cast a wide net and simply demonize every person and entity involved:  the parents, school, teaches, and entities such as CYS that often fail to properly investigate the “real” instances of neglect.

Three things will never change:  (1) abusive parents will never be totally forthright about the harm they are doing to young children (2) CYS will overstep its bounds in the future and cause pain to innocent families, and (3) we will always need investigative bodies like CYS to have authority to make decisions that help improve the lives of innocent children.

The system will never be perfect.  But an alert public, good reporting, and a constant effort by CYS to improve its procedures will help reduce the number of cases where CYS over steps it bounds in the future.

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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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