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Archive for the ‘Pennsylvania’ 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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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!

With questions, call us any time.

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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.

Call any time.

 

412.780.0008

Or Use Our Simple Contact Form 

 

 

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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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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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