By: John A. Zurzola
After bounding the initial hurdles to getting parties divorced in a contested matter like, sorting out the date of separation, meeting the statutory waiting periods, and getting the case to the point where a hearing officer can make decisions about the apportionment of assets and debts, most cases are straightforward. Read more here.
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Pennsylvania has issued new Child Support Guidelines that went into effect on January 6, 2022. In this episode, Family Law Partner, Carolyn Mirabile, discusses what you need to know about the updated Guidelines, including new increases, and how your child support case may be impacted by the new law. Click here to listen.
A recent decision of the Pennsylvania Supreme Court allows comfort dogs in the courtroom. The case is Commonwealth v. Purnell, 2021 Pa. Lexis 3610 (Pa. Supreme, Sept. 22, 2021). The case comes from Chester County and involves a 2016 murder. A 13-year-old autistic girl witnessed the shooting and told police that the shooter pointed a gun at her as he fled the scene. Two years later, when she was with another witness to the 2016 shooting, she watched as the other witness was assaulted by the same group responsible for the murder and became concerned for her safety if she cooperated with the police any further.
Before the 2018 trial on the murder, the Commonwealth asked the trial court’s permission for the now 15-year-old to testify with a comfort dog present. The argument was that the girl felt sufficiently safe with the dog to proceed with her testimony. Defense counsel opposed the request stating that the presence of the dog would make the young witness more sympathetic to the jury.
The trial judge allowed the dog to be on the witness stand with the young witness under certain restrictions. Most notably, the dog had to be inside the jury box with the witness and not visible to the jury. When not actually on the stand with the witness, the dog was to be with its handler from the Sheriff’s Department. The jury was told by the judge that the 15-year-old was accompanied on the witness stand by a “service” dog and that the jury should not be sympathetic to the witness because of the presence of the dog or for any other reason.
The defendant was convicted and appealed to Pennsylvania’s intermediate appellate court, Superior Court. That court affirmed the conviction and sentencing of the defendant.
The state Supreme Court granted review and affirmed the two lower courts. In its supporting opinion, the Supreme Court goes through an analysis of whether the safeguards and precautions taken by the trial judge in any way infringed on the defendant’s right to a fair trial. After that analysis, the Supreme Court found that the defendant was given a fair trial and affirmed the conviction and sentence.
So what does any of this have to do with family law?
Anyone who frequents the Chester County Justice Center with any regularity is aware of Melody the comfort dog, the dog discussed above. She is quite visible walking in every morning and leaving each evening. She has been specifically trained to accompany witnesses to court. The Purnell decision affects jury trials in criminal matters; Melody has always been available in juvenile dependency and child custody cases. While children do not testify per se in custody trials, they are interviewed by the judge, usually in the judge’s chambers; Melody is commonly in those interviews and is always available. The same is true of juvenile dependency cases where the child either meets with the judge or hearing officer or, when necessary, testifies in court.
While in a perfect world it should never happen, sometimes children are called as witnesses in protection from abuse cases. In Chester County, just like in criminal trials, Melody is available. With the Purnell decision, it appears that comfort dogs are now part of the landscape of the court system statewide as it relates to children.
Pfizer is saying its COVID-19 vaccine works in kids ages 5-11. You’re divorced and have two children in that age group; both live primarily with you, but they spend a few nights of the week with their other parent. Like most people, your relationship with your ex has its ups and downs. Things have been going well recently and the children are in good spirits, so you’re reluctant to upset all of that. You want to get the kids vaccinated but your ex is not as receptive to the idea.
To cap things off, you’ve been reading about vaccination mandates and are afraid this will trickle down to schools in your area. You see a storm brewing with your ex over the vaccination issue and wonder what to do.
If you have a Pennsylvania child custody order, you should know about the concept of joint legal custody. That means that both parents need to be involved in important decisions, particularly those of the medical variety. Getting your children vaccinated falls within the realm of legal custody. If you don’t have any sort of custody order, assume that joint legal custody applies. So, what happens if you want to get the kids vaccinated and their other parent does not?
Unfortunately, this is a brand new issue and the courts have yet to weigh in. Suffice it to say, the answer will depend on a number of factors. Assume you have your lawyer file an emergency petition asking a judge or custody conciliator to order that both of your children get vaccinated.
Answers to child custody questions like this are very fact specific. I tell clients that custody is not only fact specific, but judge specific as well, meaning that one judge may view the legal issues presented by a set of facts one way and another judge in the same courthouse may view the same sets of facts another way, resulting in entirely different decisions.
Judges are people and approach situations with their own sets of values and biases. Until we lawyers get a clear direction from the statewide appellate courts, one judge may clearly see the vaccination issue as one of common sense and immediately order the children vaccinated. Another judge may be more suspicious of the entire vaccination process and recognize the legal rights of the “non-vaxing” parent and deny the request.
Which judge is right, and how do we family law attorneys advise our clients? The answer to the first question is that until we have some directive from the statewide appellate courts, both judges are right. On the second question, family law attorneys need to have a sense of how their local judges will rule in a specific situation. While the attorneys handling family law cases at Weber Gallagher don’t profess to be able to predict with 100% accuracy what every judge will do in every situation, we do appear before judges and other decision-makers in the jurisdictions around southeastern Pennsylvania with sufficient regularity that we have a sense as to how each individual judge or other decision-makers will address a specific question. That does not guarantee success, but it does make for an intelligent conversation about your rights in custody situations and your chances of prevailing in the courts.
After a 2020 statewide referendum and subsequent changes in the law, New Jersey has decriminalized “regulated marijuana” that is prescribed for medical uses and the use and possession of up to 6 ounces of non-medical marijuana and 17 grams of hashish for people over 21 years of age. In an age where the medical usage of marijuana has been, by and large, accepted as legitimate by most adults, New Jersey continues to be steps ahead of other states in its marijuana law. It is still a crime in New Jersey to drive under the influence of marijuana and sell it, but if you’re 21, it’s perfectly legal to use it on your property and to carry it in your car. Suddenly, “On the Way to Cape May,” just took on a whole new meaning!
One might automatically think now that smoking pot or hashish is no longer considered a black mark by the courts when the question of child custody or termination of your parental rights is at stake. That would be incorrect, however, as recently seen in the reported New Jersey Appeals Court decision in NJ Division of Child Protection and Permanency vs. D.H., and T.W.; and J.K. and K.M. In that case, a set of parents lost their children when the Superior Court determined that their parental rights should be terminated, and the children were given to foster parents.
The facts of the case are not hazy. The parents, in this case, admitted they both smoked pot regularly while caring for their school-aged child. They argued, however, that since the 2020 referendum and the new state laws, they could not have their pot use held against them when the state agency wanted to take their kids away. The good news for the parents was that the Court agreed with them on that point but terminated their parental rights anyway – and for good reason.
It seems the Court, while stating clearly that New Jersey has never “historically treated” smoking pot as a be-all-end-all reason for taking someone’s children away, found that expert testimony and an examination of the parents’ ability to care for the child when using marijuana (and other reasons) was relevant. The court found that this reasoning was in line with prior case law, notwithstanding any effect of the new laws decriminalizing marijuana usage. This was clearly a “bad trip” for the parents.
One can imagine that this decision can be relevant both in states where recreational usage has been decriminalized and where it has not. In Pennsylvania, for instance, (as of August 11, 2021) only medical marijuana is legal if prescribed with a 30-day supply. You are not allowed to smoke it unless you have a medical marijuana card. Also, in certain municipalities across Pennsylvania, recreational usage has been decriminalized such that prosecution and enforcement may no longer be the priority of law enforcement. Oh, you also aren’t allowed to grow it in Pennsylvania or the “Garden State” either. You may, however, still plant all the Jersey Tomatoes you can eat, whether this satisfies “the munchies” or not . . . exhale.
Now, as Snoop Dog might say, “back to the lecture at hand.” So, what happens in a case, say in Pennsylvania, with the same facts as the New Jersey case or in a normal child custody matter where the court is not being asked to take kids away but to simply choose one parent over the other in a child custody dispute? Would a Pennsylvania court automatically find that if you “partake” you don’t get to be a parent? Unlikely. It seems that the case law, decriminalization laws or not, will focus on your ability to parent, the best interests of the child, and how you fit into already well-established statutory factors and case law standards that have always been used to determine your ability to be a parent – just like what was wisely done by the New Jersey Court.
So, while I’m sure that the likes of Cheech and Chong and all the hipsters at High Times Magazine might consider this a major “buzz kill,” the holding in the New Jersey case is well in line with established jurisprudence and can still live in the same world where responsible marijuana decriminalization laws will be the NORM(L).
In my most recent blog post, I addressed the issues of termination of child support and child custody when either the child turns 18 or graduates from high school. You can read it here. To recap, child support ends at age 18 or graduation from high school, whichever comes later; child custody jurisdiction ends at age 18. However, there are some exceptions.
Relative to child support, the biggest exception is when there is a written agreement to continue some form of support after high school.
It is not uncommon for two divorcing parents to put in the agreement resolving the economic issues in their divorce a formula for addressing their children’s college education. This language is enforceable, just like any other contract, and an exception to the statutory language on the end of support.
The other exception is for a child with special needs. While the law assumes that a child becomes an adult at age 18 and can financially support themselves, it is merely a presumption. Obviously, the special needs child cannot financially support themselves at 18.
In these situations, child support continues but the burden is on the parent seeking continuing child support to prove the child needs those continuing payments. In some cases, this is easy to prove but in other cases, there is a hearing to determine if there is an ongoing need.
With custody jurisdiction, the situation is even more complicated. At age 18, child custody jurisdiction simply ends. But what about the child with down syndrome, cerebral palsy, or some other serious disability? The parent or parents with sole or shared legal custody can no longer make decisions for the now-adult child. What happens, or at least what should happen, is that one parent or both parents need to go to Orphan’s Court, file a guardianship petition, and have the child declared an incapacitated person. Then one or both parents are appointed the guardian or co-guardians of the adult child’s person, estate, or both.
I have worked on a few cases involving adult children with serious challenging diagnoses. In some of these cases, the parents are on the same page, have been appointed co-guardians, and move on just as they had before the child turned 18, even agreeing to continue the previous partial physical custody schedule. I have also been involved in cases where the parents never saw eye-to-eye on any aspect of the child’s care, education, or plan for the child’s special needs. Unfortunately, those contentious custody cases become contentious guardianship cases after the child turns 18.
The problem is that without an agreement, the Orphan’s Court judge has no obligation to appoint co-guardians; if there is an obvious conflict between the parents there can only be one guardian, and the non-guardian parent feels more than left out. What further complicates the situation is the “best interest of the child” standard from custody court does not apply in a guardianship, nor does the concept of partial physical custody. That gives the parent appointed guardian discretion in deciding whether to allow the other parent access to the special needs adult child. Obviously, the guardian is to act in the incapacitated person’s best interest but if a doctor, therapist, or caregiver is of the opinion that the now non-guardian parent is a negative influence on the incapacitated adult child, and the guardian agrees with that opinion, there is virtually nothing the non-parent can do to force the issue.
The family law attorneys at Weber Gallagher have experience with complicated child support, child custody, and guardianship issues and would be happy to discuss any of your questions on these issues. Feel free to contact our office at 610.272.5555.
As the weather starts to get nice, what does that mean? For families with children, it means the end of the school year. Yes, things have been different for over a year, but Memorial Day and June still mean the end of the school year. If you are a parent of a graduating senior, it is the start of a season with big transitions. If you are paying or receiving child support, there are even greater transitions.
As any Pennsylvania family law attorney will tell you, a parent’s legal obligation to pay child support ends at age 18 or graduation from high school, whichever comes later, at least in most circumstances.
I commonly get asked by “payor” parents what they need to do to stop child support. My general answer is nothing, at least in the counties where I practice. The process is started a few months before graduation when the Domestic Relations Section of the Court that issued the Support Order sends a letter to the “payee” parent, the one receiving child support. This letter says their records indicate the child is over 18 and scheduled to graduate and, as a result, child support is scheduled to end.
The payee parent can sign and return the letter saying they agree or disagree with the termination of support. If the payee parent agrees, child support stops charging at graduation. If the payee parent disagrees or does not respond, a support conference is scheduled. If arrears are still due and owed after the order stops charging, the old order amount will remain the same and any amounts collected will be used to pay down the existing arrearage.
A word of caution: If one child is coming off a support order and one child is staying on because they are younger, the support order should not just get cut in half. Under the Pennsylvania Support Guidelines, support for a child is more than half of support for two children, so be ready.
I noted above that the payee parent has the right to object to the termination of child support. Just like every rule, there are exceptions to the age “18 or graduation from high school” rule. In the companion to this blog post, I will touch on these exceptions.
As to child custody, the law is much simpler, the jurisdiction of the child custody courts ends at age 18, with no exceptions. That being the exception to the rule that every rule has an exception. This means if a child turns 18 during junior year of high school and the parents share physical custody, there is no legal compulsion to continue to follow the child custody order. Again, as I stated above, “no exceptions,” and that is true, but what about a custody case with a long, contentious history concerning a child with special needs?
Read more here in my companion post.
Now that you are vaccinated, is it safe to travel with your child? Many clients are planning a summer vacation this year with the anticipation of being fully vaccinated. The best advice a family lawyer can give is to begin discussions with the other parent as soon as possible. According to the CDC, 50.8% of the United States population is vaccinated with at least one dose as of June 2, 2021. However, there are still plenty of travel restrictions in place domestically and abroad.
What to consider if traveling?
If a parent is planning a vacation outside of the U.S, everyone involved should discuss the logistics of any required testing or quarantine before leaving. Travel within the U.S may be a bit easier as vaccination numbers increase, and cities begin to fully reopen. It is apparent that there are different rules regarding vaccinations, quarantine, wearing a mask, social distancing, and interacting with others across the country and abroad.
Questions both parents should be aware of include the following:
- Who is going on the vaccination with the family? Are all eligible members of the vacation party vaccinated?
- Will the children and other members of the vacation party be wearing a mask in public?
- Where is the trip’s location and what are the COVID-19 restrictions there?
- If you are traveling with other people who are not fully vaccinated, will they wear their masks around the children?
- Do you need to show the other parent proof of vaccination?
- Will the children quarantine upon their return and with whom?
- What if the child or children has a health condition like asthma? What precautions will be taken to ensure the child is protected?
The best advice is to review all the information about where you are going and plan well in advance. Parents who are traveling must follow all safety requirements of the place they are traveling to and be prepared to be flexible in case there is a change in plans. Further, parents should be cautious when booking flights and verify the safety measurements the airline is taking to help prevent the contraction of COVID.
If you have questions about how summer travel factors into your custody agreement, reach out to our family law lawyers. We are happy to provide you with guidance during this challenging time.
Bill and Melinda Gates announced their divorce after 27 years of marriage. What does this mean for Microsoft and the Bill and Melinda Gates Foundation?
In March 2020 Bill Gates stepped down from his roles on the boards of Microsoft and Berkshire-Hathaway to spend more time with his family and focus on the Gates Foundation. The impending divorce may have an impact on several of Bill Gates’ investments and Foundation goals.
Both Bill and Melinda have committed to the Foundation, even after the divorce, stating they will remain co-chairs and trustees of the Foundation and continue to work together in their international goals to fight poverty, disease, and inequity around the world. You can read their full statement here. They have invested billions of dollars in education and global health, including resources to help combat the COVID-19 pandemic. Members of the Foundation may be concerned regarding their future investments and commitment to continue to work together post-divorce. Melinda Gates also has her own foundation for which she may choose to invest in post-divorce.
Bill Gates, who co-founded Microsoft, met Melinda while she worked at Microsoft. Bill Gates has committed to pledge most of the money he earned from Microsoft to charitable organizations. Investors are uncertain whether this commitment to charitable giving will continue or be affected by the divorce.
Although Bill and Melinda do not have a prenuptial agreement, they have signed a separation contract that outlines how their property will be divided if they separated. According to divorce filings, the parties have asked their real and personal property to be divided pursuant to the terms of their separation agreement. Melinda Gates did not request spousal support.
The divorce was filed in Seattle, Washington, which is a community property state. In a community property state, generally, items accumulated during the marriage are considered marital and will be divided equally. Community property includes income earned during the marriage, retirement assets, and interest on investments. Additionally, community property is any property purchased during the marriage or obtained with community funds. The parties may choose in an agreement to divide their property other than equally. The terms of the Gates separation agreement are not public.
Bill Gates’ fortune, which not only includes Microsoft but investments in the Four Seasons Hotel chain, AutoNation, and real estate, could be at risk because of the divorce. Currently, Bill Gates owns 1.3% of Microsoft which is worth more than $26 Billion. Microsoft went public in 1986 but Bill and Melinda did not marry until 1999. Microsoft shares owned prior to marriage are not considered marital in a community property state. Bill Gates is now estimated to be worth $146 Billion. Determining the marital estate will involve tracing efforts and calculation of the community property estate. Division of the Gates’ estate will be watched to see what impact it will have on the Foundation and gifting to charities that Bill and Melinda have committed to both individually and together.
Tax season always brings up several questions for clients who are divorced, in the process of divorce, or separated. The two biggest concerns are typically determining which filing status is most applicable to your situation and whether or not you should claim your children on your taxes.
First, let’s take a look at your tax filing status. Many questions are probably going through your head at the moment. Do you file as married, separate, head of household, or a joint tax return? These are all great questions, and they are a clear indication that now, perhaps, more than ever, it’s critically important that you enlist the services of an accountant.
This year finding the right filing status for your family is even more important due to the 2020 stimulus checks, unemployment benefits that may have been received, and the increased child tax credit. Clients should also discuss with their accountant deductions that may not have been previously available. For instance, Pennsylvania may permit you to deduct expenses if you worked at home in 2020.
Now is the time to have these discussions with an accountant. Figuring out all of the details in advance of filing will prevent delays. The IRS has extended the date for filing 2020 taxes to May 17, but it is important to do so as soon as possible. The best advice a family law practitioner can give to a client is to speak with their accountant and run the calculations to figure out the best scenario for their family.
Want to learn more? Check out our podcast episode, Let’s Talk Family Law Taxes for an in-depth discussion with Donna Pironti, a forensic accountant specializing in matrimonial litigation support and tax consulting.