By: John Zurzola
We have all suddenly been forced into the situation of social distancing, quarantine, sheltering in place or staying at home. While the situation has been evolving, we have adjusted to what this specifically means to each of our lives and households. The one constant is the terms of your child custody order have not changed.
Our office has received calls from clients with custody orders, new clients who have been co-parenting for years, and those newly separated from their partners and having to share children. We have learned of legitimate instances of former couples having to use their best judgment when sharing custody after potential exposure or having experienced COVID-19 symptoms. We are also being told of parents using the COVID-19 fears as a reason to deny the other parent custody or visitation of their children.
The courts, while closed, have all put in place provisions for emergency procedures.
Also, the Pennsylvania Governor’s stay at home orders still permits travel to enforce court orders – like Child Custody Orders. It remains to be seen whether the denial of access to your child by another parent will be considered an emergency by the courts even though it is almost certainly an issue of violation of a court order.
This situation we are all faced with may go on for months. It is sad to think that this problem may be used unreasonably to deny custody to parents who are divorced or have split up. Our suggestion is to pull out your Custody Order and read what it says. What are the terms that deal with notifying the other parent about emergencies? What are the terms having to do with pick-up and drop off and can they be used as a basis for implementing even more protections for your family and child? Provisions common to most Custody Orders should be carefully examined like implementing curbside pick-up and drop off, asking a doctor how long one should wait after being exposed to others before children are allowed to go to the other home, and an inquiry by one parent as to the possible exposure of the members of the other party’s household.
By: Carolyn Mirabile
As March comes to a close, parties must remember to submit their unreimbursed medical expenses in advance of the March 31 deadline. The Support Statute provides all copays, and out of pocket medical expenses shall be divided based on the proportionate share of income of the parties. The party asking for reimbursement must incur an expense, and the cost must be submitted with receipts to the payor spouse. The payor must be given 30 days to make payments.
It is recommended unreimbursed medical expenses should be submitted every quarter. This is suggested, so the payor spouse is not overwhelmed with thousands of dollars of unreimbursed medical expenses in any given month. Additionally, all unreimbursed expenses in any given year must be submitted by March 30 of the following year in order for the expenses to be eligible for reimbursement.
Payees should check their support order carefully to make sure the expenses submitted are included in their support order as some expenses, such as therapy, are not included unless specifically provided for in the order.
- Do you have household supplies including necessary food and diapers for babies and children?
- Are you limiting third party contact?
- If you are going to the grocery store or other necessary place, including work, what actions are you taking to mitigate the situation?
- Are you washing your hands, using anti-bacterial soap and disinfecting surfaces after going in public?
- Are you ensuring the child is doing the same in the household?
- Are you monitoring members of the household and whether they are showing any symptoms, and have you provided this information to the custodial parent?
- If your child is at risk or suffers from anxiety, are both parents monitoring the child’s behavior and are both parents giving the child any necessary medications?
- If a child is directed to continue school while at home, are both parents monitoring if the child is attending classes, doing homework and completing all assignments?
By: John Zurzola
I have to admit, I had never heard of National Proposal Day until a divorce attorney colleague of mine sarcastically remarked upon this “special day” as being the first day in the married lives of some of our future clients. Like most jokes or quips in a professional context, this one wasn’t especially humorous but did have a certain ring of truth about it. Notwithstanding, my mind went to work, and I wanted to discover everything there was to know about National Proposal Day. It took all of five minutes on the internet. Five minutes I’ll never get back.
I won’t spoil it for anyone except to say that National Proposal Day is March 20th of each year, which also happens to be National Ravioli Day. One would imagine that observing both, possibly at the same time, doesn’t present any inherent conflicts unless, of course, the proposal is rejected, which may mean that the ravioli goes uneaten or possibly on someone’s lap. Caution: The March 20th observance should not be confused with “Propose Day,” which is a separate observance and is celebrated on February 8th, ostensibly to trump Valentine’s Day, for which you are most certainly acquainted.
I digress. What does any of this have to do with the ruminations of a divorce attorney and any practical or valuable legal advice for clients? The answer is . . . NONE! NADA! . . . And . . . ZILCH! That said divorce attorneys don’t always find ourselves dispensing cold legal advice. At times, we might also be wearing our counselor hats, like when a client asks us about a prenuptial agreement. The client might also ask us whether they are doing the right thing – getting married. After the usual disclaimer that we aren’t psychologists or aren’t being paid to be one, we often find ourselves “getting real” with our clients and dispensing the same advice we might say to a close friend. This is where the folly of the idea of a National Proposal Day might be seen. As a divorce attorney, I have often been told of a made-up crisis of a quick wedding because the venue is available, or the faux utility of the destination wedding that is booked already so the wedding might as well take place. People are going to get married, and they should, but a rushed marriage is one of the scenarios where a prenuptial agreement is very important.
A good prenup can shield all of the assets that you have worked for and accumulated before committing to be married. It can set-forth whether one party is responsible for paying alimony and support to another in the event of a breakup or divorce. It can also set forth the rules that decide who gets what and when a house that two people contribute to must be sold. A good prenup can define what separation is and what happens when you have children. A good prenup can include “phase-out” provisions that go away after, say, the parties have been married for five or 10 or 20 years. I could go on and on and still not list every advantage of a well thought out prenuptial agreement. This is because everyone’s situation is different.
Marriage is a serious commitment, both emotionally and financially. Planning for an eventual breakup, while really no fun to even think about, can be a necessary part of planning to be married and planning for your future. If it is not, then my colleague’s tasteless “joke” about our future clients being made on the March 20th National Proposal Day might be just as funny as it is sad.
UPDATE as of Wednesday, March 25th.
I have an addendum to my recent post on custody in the coronavirus situation. A question that has come up frequently in the last few days concerns custody exchanges in light of a Shelter in Place or Stay-at-Home order: Am I free to leave my house to exchange custody?
Although he might not have authority where you live, the Mayor of Philadelphia has said that a custody exchange is a necessity trip and, therefore, allowed under a Stay-at-Home order. The same sentiment has been expressed by family court judges from both Bucks and Montgomery Counties in Pennsylvania. While some of these cases may be more complicated fact-specific, that answer is the consensus among family law attorneys in Pennsylvania.
Coronavirus has permeated every aspect of our lives. Everything from going to work, grocery shopping, getting the kids to school or even going to a park has now taken on a new dynamic. More simply put, just about everything we took for granted is now called into question. This is doubly true for custody cases.
I personally have been involved in four such incidents already. These incidents seem to fall into specific categories. The first involves childcare. While most daycares around the Commonwealth are closed, not all are. Workers on the front lines, especially those in the healthcare field, are still required to attend work. What if Mom is a nurse and needs childcare? Does Dad have the right to stop Mom from using the parties’ usual childcare provider because of coronavirus fears?
The second situation is one parent has supervised custody. In some cases, supervision is provided by either a government agency or a non-profit. What if the facility is not open during the current crisis? Does that mean that the parent gets no visits until the current situation passes? That could be months.
Then there is the third situation where custody is exchanged in a public place. With so many closures across the state, what if that public place is no longer open or one parent becomes suspicious that the child or the parent could contract coronavirus in that public place? Does that mean no custody exchange?
Now the fourth situation, what happens if one parent has been exposed to someone who has tested positive for coronavirus? Does that mean that the parent loses his or her upcoming periods of physical custody?
Finally, traveling, One parent has access to a house at the New Jersey or North Carolina shore, and the children have at least two weeks off from school. If they start to drive the primary custodial parent crazy, can that parent take the children to the shore for a few days?
Like most custody questions, every situation is fact-specific, so there are no simple answers. I will, however, offer a few thoughts or guiding principles. The first one is, communicate with the other parent. If you have been exposed to coronavirus, tell the other parent. If you want to take the kids to the shore for a few days, tell the other parent. If you are suspicious of the cleanliness of the convenience store where you exchange custody or the public building where you exchange the children is closed, let the other side know. The sooner the other side knows all the facts, maybe the two of you can work it out before going to lawyers or the courts.
My second guiding principle is to use some common sense. If you have been exposed to coronavirus, what is more important, a few days with your kids, or not exposing them to something that the medical community does not yet fully understand? Same thing for traveling. You might have a house at the shore but, do the local authorities of the beach town in New Jersey want you there? In the daycare scenario, if you need childcare, you need childcare. Assuming the other parent cannot or will not step up and take the child, you have to utilize the daycare.
With supervised custody, some custody orders specify the supervisors, some generally order supervision. If an agency-type supervisor is not available and domestic violence is not a significant issue, maybe the custodial parent supervises the custody of him or herself with or without another person. If I am representing the person subject to the supervision order, I am telling the person these are unusual times, and some time with your children is better than no time with your children.
The final suggestion is basic lawyer stuff when there is a custody dispute, read the order and do what is says. If it says the parties use a specific daycare, then they must use that daycare. If nothing is preventing Mom from taking the kids to the shore during her weekdays and it does not infringe on Dad’s time, it might not be the best choice, but Dad cannot stop her. If the order says Visitation Station supervises custody, and they are not available, and nothing else can be worked out, too bad.
The lawyer’s last recourse in all of this is either an emergency petition or a contempt petition. Considering that the Courts around the state are mostly closed but for emergencies, my guess is that the definition of a custody “emergency” will be pretty strict over the next few weeks. I practice primarily in Chester County, Pennsylvania, and in a bit of gallows humor, custody emergencies follow the “severe bloodshed rule”; anything short of serious bloodshed is not an emergency. My guess is that rule will be more widely applied throughout the state for the time being.
On custody contempt, when the Courts reopen there will probably be a rash of custody contempt filings, but the hearing officer who handles the first round of custody contempt filings in Chester County says his job is to call “balls and strikes” and he considers himself to be a “strict constructionist” when it comes to the language of custody orders. If the order says one side is supposed to do something and he or she does not do that, the hearing officer finds contempt; however, he also looks for an element of spite in the person accused of contempt. If someone is backed into a corner and makes a rational decision and did it because he or she had to and was not trying to deliberately hurt the other side, he is not finding contempt — something to remember going forward when considering a custody contempt.
I saw on my calendar that the first week in March is World Orphan Week. The subject of orphans leads to the topic of children in need, which leads to dependent children, which leads, ultimately, to the discussion of adoption. This month’s blog post, therefore, will touch on adoption, but first, back to World Orphan Week (WOW).
WOW was established in 2005 by a British children’s charity called SOS Children’s Villages UK. This organization works in 134 countries and territories around the world, including the United Kingdom and the United States. The United States’ first WOW was in 2008.
WOW’s purpose is to draw attention to the suffering of the tens of millions orphaned and abandoned children in the world today and raise money for programs benefitting these children. To learn more information about WOW specifically, please visit their website at www.sos-childrensvillages.org. Interested individuals can follow the US, Canadian or UK affiliates on social media, sponsor a child, or sponsor an entire village of children through the website.
Closer to home, there are hundreds of children in the Philadelphia area looking for forever homes. People traditionally associate adoption with healthy but unplanned babies, but that is only a small percentage of adoptable children. There are many dependent children in the foster care system ready for adoption, “orphans” in the most traditional sense. They need families who are ready and willing to adopt. Age plays a huge factor in many of the difficult to place children because they are considered too old. Other reasons these children aren’t adopted are because they are of a minority group, a group of siblings or the children is facing physical or mental challenges. They need forever homes just as much as those healthy babies we usually think of in the adoption context.
For people interested in finding out more about children in the local foster care system, call your county Department of Children, Youth and Families. In Philadelphia, it is the Department of Human Services or DHS. In New Jersey, it is the Department of Children and Families. Another excellent source is Philadelphia’s Adoption Center, www.adopt.org, or 1-800-TO-ADOPT.
There are many different types of adoptions, and most involve children other than infants. There can be international adoptions, interstate adoptions, step-parent adoptions and even adoptions of adult children. However, if you are thinking about adoption, consider a child currently in the foster care system. Best of all, for family law attorneys, all of these adoptions have happy endings.
The United States Supreme Court recently granted certiorari in a case of both local and national importance. The case is Fulton v. Philadelphia, Pa., 922 F.3d (3rd Cir., April 22, 2019), cert. granted ___U.S.___, 2020 U.S. Lexis 961 (February 24, 2020). A Writ of Certiorari is a request for a review of a decision of one of the United States Circuit Courts of Appeal; basically, an appeal to the Supreme Court. The United States Supreme Court is a court that grants appeals only at its discretion, not as of right, so the mere fact that the Supreme Court granted the appeal is significant.
There are four Appellants in the case, those being the plaintiffs in the lower Court. Three of the four plaintiffs are individuals who have acted as foster parents through the fourth and most noteworthy plaintiff, Catholic Social Services. The more popular name for this case is Catholic Social Services v. Philadelphia.
Factually, the case goes back to an article that appeared in the Philadelphia Inquirer in March 2018. In that article, the Inquirer pointed out that two religious-based social service providers under contract with the City of Philadelphia’s Department of Human Services were discriminating against same-sex couples. Those two organizations were Bethany Christian Services (Bethany) and Catholic Social Services (CSS). While the City has negotiated a resolution with Bethany, it failed to do so with CSS. Ultimately CSS sought a preliminary injunction in Federal Court against the City.
The United States District Court denied the injunction request, and CSS appealed to the Third Circuit Court of Appeals. The Third Circuit affirmed the District Court’s decision. The U.S. Supreme Court has granted CSS’s appeal from the Third Circuit decision. By way of background, CSS has been providing care to vulnerable children in Philadelphia since its formation in 1917, but the tradition of the Catholic Church’s involvement with the less fortunate goes back to the yellow fever outbreak of 1797.
Up through 2018, CSS entered into a series of one-year contracts with the City. At the same time, the City maintained a Fair Practices Ordinance, which the City incorporates into all contracts. That Ordinance prohibited sexual orientation discrimination in public accommodations; however, for some time, the City overlooked that prohibition in its dealings with Bethany and CSS.
Two days after the Inquirer article, Philadelphia’s City Council passed a resolution directing the Philadelphia Commission on Human Relations to investigate the City’s Department of Human Services (DHS). They also were directed to investigate any contractor with the City that was discriminating against prospective LGBTQ foster parents. If discrimination was found, DHS needed to terminate the contracts with deliberate speed. The City did not immediately terminate CSS’s contract, but it initiated an intake freeze. This intake freeze stipulated that unless a child was part of a sibling group already in CSS care, DHS would place no new children in a CSS foster home. On June 30, 2018, the City did not renew CSS’s one-year contract, and CSS was no longer provided with either referrals or foster care reimbursements. CSS, however, was permitted to continue to provide Philadelphia with group homes and in-home services for families involved with DHS in Philadelphia.
In the case, CSS asserts that it is mandated by Pennsylvania law to assess the suitability of prospective foster parents. This includes examining “existing family relationships, attitudes and expectations regarding the applicant’s children and parent/child relationship, especially as they might affect a foster child.” 23 Pa. C.S.A. §6344(d)(2)(iv); 55 Pa. Code §3700.64(b)(1).
Based on that language, CSS refused to certify not only unmarried same-sex couples but also heterosexual unmarried couples. Concerning married same-sex couples, CSS cited the teachings of the Catholic Church that marriage can only happen between a man and a woman. According to CSS, married same-sex couples fell into the same category of all unmarried couples and were not approved as such.
CSS’s legal argument is that in terminating and not renewing its foster care contract with the City, the City is violating the Free Exercise and Establishment Clauses of the First Amendment. In other words, CSS argues that part of its function is to provide services to vulnerable children in Philadelphia. These services include foster care placements. The Commonwealth of Pennsylvania requires CSS to assess potential foster parents based on moral and parental attitude criteria. CSS, a religious institution, does these based on the religious teachings of the Catholic Church. The Catholic Church opposes two people living together outside of a marital relationship, be they a heterosexual or a same-sex couple. In discontinuing its relationship with CSS, the City of Philadelphia is forcing CSS to choose between contradicting its religious teachings or abandoning the core function of providing foster care services for vulnerable children. By making CSS chose, the City is, therefore, violating CSS’s First Amendment rights to practice its religion. On appeal, CSS presents three questions to the Supreme Court:
- Whether Free Exercise plaintiffs can only succeed by proving a particular type of discrimination claim, this would be that the government would allow the same conduct by someone who held different religious views – as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuit courts have held?
- Whether Employment Division v. Smith, should be revisited?
- Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?
CSS’s first and third issues are somewhat self-explanatory. The second, the one based on Employment Division v. Smith, 494 U.S. 872 (1990); and its more famous related cases, Masterpiece Bakeshop Ltd v. Colorado Civil Rights Commission, ___ U.S.___, 138 S. Ct. 1719 (2018); and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), deserves more explanation. Masterpiece Bakeshop is a case involving a bakery in Colorado that refused to make a cake for a same-sex wedding and then cited and fined by the Colorado Civil Rights Commission. The Bakery ultimately prevailed. Lukumi involves a church of the Caribbean Santeria religion, which uses animal sacrifice in certain rituals. The City of Hialeah, Florida, passed an ordinance prohibiting animal sacrifice specifically aimed at the church. The church ultimately prevailed as well.
The decision to be reviewed by the Supreme Court is that the Third Circuit sided with the City in denying CSS’s request for an injunction. The Court’s rationale behind the injunction is that providing foster care services is not an intrinsically religious activity. While CSS’s religious beliefs are certainly legitimately held, the First Amendment does not “relieve an individual of the obligation to comply with a ‘valid and natural law of general applicability on the ground that the law proscribes conduct that his religion proscribes’…” Employment Division v. Smith, 494 US 872, 879 (1990).
In simple terms, religious beliefs cannot justify discrimination. The Third Circuit also raises the point that while the original contract expired, CSS is now asking that the City enter into a foster care contract with CSS on CSS’s terms. That is certainly a high bar to reach either legally or logically.
Which side will prevail? Who knows? While the Supreme Court has been trending toward the more conservative in recent years if the issue comes down to religious freedom, which is a subset of individual rights, doesn’t the City of Philadelphia have the individual right to contract with whomever it so chooses?
Family Law Attorney John Zurzola discusses all the steps involved in a child custody case in family court. He starts off explaining child custody and the definitions of what physical, primary, shared, sole and partial custody all mean. Then, John touches on the complexities of “standing” and “in loco parentis.” Next, he goes into detail about the actual filing of a custody complaint through mediation and then court. John explains what can happen in time-sensitive cases when your actual court date may be months away. Finally, he takes you through a typical custody trial, covers the 16 factors a judge must use to decide your case, and what you must do to modify your custody order or relocate to another state.