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Pennsylvania experimented with the use of a parental coordinator in custody cases, as you may recall from a prior post on this site  That is to say, in PA, a judge could appoint a parental coordinator to enforce a custody order or handle the process of making modifications to it.

Good Law?   

Long story short, in 2013, Pennsylvania ended its experiment with the use of parental coordinators.  This was made official via the Pennsylvania Supreme Court adoption of Rule of Civil Procedure 1915.11-1.  Pursuant to the new rule, only judges may make decisions in child custody cases, which also includes hearing officers/masters.  Thus, the courts may not appoint any other person to render decisions or recommendations or alter a custody order in child custody cases.  Moreover, effective May 23, 2013, all existing orders appointing Parental Coordinators were vacated.

Why The New Rule?

The Supreme Court of Pennsylvania had a concern with recent controversies in 2 different counties concerning juvenile placement and guardians ad litem.

The Consequences:  A Good Thing? 

It depends on whom you ask.   Many Judges like the idea of delegating duties to a parental coordinator.  Certain family law attorneys viewed the program as having value as an important bridge between the parties, lawyers, and the courts.  An argument could be made that the program should have been tweaked, but not dismantled.    Regardless, abolishing the program will favors transparency and add to more direct accountability for decisions in child custody court.

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What is a “parenting coordinator”?

A parenting coordinator is a person appointed by the judge in custody cases to help execute and coordinate ancillary issues of a custody order.  This helps ease the burden of the trial judge in dealing with the day to day aspects of implementing a custody order.  Parenting coordination has become a significant area of law in Pennsylvania child custody.  One concern is the following:   Is the appointment of a “parenting coordinator” the improper delegation of judicial decision-making authority?   Another issue is this:  what about the requisite credentials of the parenting coordinator?  Should that person be an attorney?  A mental health professional? 

One of the leading cases in this area is Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008). There, the appellate court (the Superior Court) ruled that a trial court may appoint a parenting coordinator in cases with high-conflict parents who have demonstrated difficulty in rendering parental decisions independently.  There, the appellate court also constricted the parenting coordinator’s authority to side issues and not central matters such as legal and physical custody decisions. The Yates court also decided that a de novo review of a parenting coordinator’s decision must be utilized if either party disagrees with the parenting coordinator’s decision.

Recently, in the case of A.H. v. C.M., __ A.3d __, 2012 PA Super. 277 (December 18, 2012), the Superior Court once again addressed the requirement of a de novo review of a parenting coordinator’s decision.  There, the appellate court decided that the trial court erred in failing to hold a deno hearing on the mother’s petition to review the parenting coordinator’s decision.

On appeal, the Superior Court in the A.H. case held that the trial court erred in failing to hold a de novo hearing on C.M.’s (the mother’s) petition to review the parenting coordinator’s decision.

As one attorney, Micheal E. Bertin, noted:

 “[A.H. v. C.M.] is important for family law practitioners as it provides further guidance on the issue of parenting coordination. There exists a proposed rule of civil procedure permitting a judge to appoint parenting coordinators at any time after a custody order has been entered. The proposed rule mandates a de novo review of the parenting coordinator’s rulings if the party seeks review of the same. In the past, there was also proposed legislation that was on the other end of the spectrum and provided, in part, “a judge of a Court of Common Pleas shall have no authority to appoint a parenting coordinator in an action involving custody of a child. Any decision rendered by a parenting coordinator shall be void.” The proposed legislation was never enacted and the proposed rule has not been promulgated. Therefore, the current law regarding parenting coordinators remains the holding in the Yates decision and the Superior Court’s affirmation and reiteration of the mandates contained in the Yates decision as reflected in the recent case of A.H.”

Contact our Pittsburgh lawyers any time for a free consultation about this matter, or any other issue involving custody, support, divorce, of PFA.

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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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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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It looks like things are getting worse for Charlie Sheen.  It appears that he has a court date coming up in February, but according to reports,  Hanes has already dropped him from its advertising.   It may be some time before the courts take a serious look at whether there is any truth to the recent allegations about Charlie Sheen.   

In the short run, any allegation of abuse will (and should) be taken seriously. When a party to a relationship claims abuse, the courts are quick to grant a Protection From Abuse Act order if only to keep the parties separated.  The courts often seem to say:  “Hey, who cares who did what?  I just don’t want to see any kind of abuse happen in the future on my watch, you hear me?  I’m ordering that the alleged aggressor stay away.” 

You really can’t blame the court for taking this approach.  If you were wearing the judicial robe, you would probably do the same thing.  Imagine if you were to deny a Petition for Protection From Abuse (PFA), only to learn that the alleged abuser seriously hurt (or killed) the petitioner only hours after exiting  your courtroom.  Hence, when in doubt, it often makes the most sence for a judge to err on the side of granting Petitions for Protection From Abuse when the facts are unclear. 

But what about cases involving criminal charges above and beyond a PFA?  There, it’s a whole different situation.  When charged with a crime, as a matter of constitutional right, we are innocent until proven guilty beyond a reasonable doubt.  Here, the courts are not allowed to rush to judgment.   The defendant will get the right to a jury trial and he’s entitled to have his day in court.  He has a 6th Amendment Right to confront witnesses offered against him.  He can challenge whether the allegations of abuse are support by proof of touching (bruises, cut, broken bones), and whether any witness would support the accusers version of the facts. 

In the meantime, however, it is generally best for the parties to agree to avoid contact for at least as much time as needed for a cooling or more permanent separation.  Charlie Sheen should listen closely to his advice of legal counsel on this, because every case is different.  Settlement agreements can come to haunt the parties, so the wording matters.  Plus, unfortunately, the system can be abused by those falsely claiming abuse to gain leverage in a divorce, custody, dispute or to evict someone from a shared premises.   Every case must be looked at on its facts to ensure that (1) courts are being fair to all parties and (2) right solution is found.  

What makes these cases particularly difficult is when the parties are public figures and the allegations of abuse become the subject of headlines.  Typically, the final agreement between the parties will often involve a non-disclosure clause and the public may never know the truth.  This is also true if the parties reconcile, so the public might only see the allegations, absent any evidence of serious injury.

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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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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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