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What could be more stressful than the holidays? Try getting through the holidays if you are a divorced or separated parent. This is especially true for those parents who have trouble with their ex-spouse during the rest of the year.Conflict is often exacerbated between separated parents during the holiday season. Oftentimes, though, the tension and conflict can be avoided by following a few do’s and don’ts.

1. Do review your custody order ahead of time. If you have a custody order or agreement, check it now. Commonly, holidays are rotated annually. For example, the mother would have Christmas Day in the even years and the father would have Christmas Day in the odd years. Your order may also provide the pickup and drop-off times. Yet, parents fail to review these orders or agreements until it is too late, after they have made plans for the children. If your order is ambiguous or you are not sure who had what holiday last year, communicate with the other parent and see if you can reach an agreement so there is no confusion on the actual holiday.

2.  Do try to work it out with the other parent. If your order or agreement is silent as to the holiday time, or you do not have an order, try to reach an agreement either directly with the other parent or though attorneys. As a last resort, you can attempt to go to court to have a judge resolve the issue; however, it is unlikely that you will get in front of a judge before the holidays. Consider using mediation as a means to reach an agreement.

3. Do discuss the holidays with your children. Once you have confirmed what the schedule will be for the holidays, talk to your children (depending on their age) to let them know where they will be and when. Don’t wait until Christmas Eve to tell them that they are going to their father’s house for Christmas morning. Depending on their age, children benefit from knowing ahead of time what the schedule will be so they can anticipate what their holiday season will look like.

4. Don’t get caught up with having the actual holiday. Parents sometimes fixate about having the exact holiday, like Christmas morning. Remember that the holidays are not necessarily about the actual day, but instead about spending time with your children. You might find out that your children don’t care so much about opening presents on Christmas morning versus Christmas evening, just that they actually get presents they want.

5.  Don’t be scared to start new traditions with your children based on your custody order. For example, if you don’t have custody of your children on Thanksgiving evening, explain to them that you are having a new special Thanksgiving dinner the day after Thanksgiving every year, followed by a game night. Invite your extended family. Make it into a fun event that your children will look forward to every year.

6. Don’t put your children in the middle of any custody disputes, especially holiday disputes. If you and your ex cannot reach an agreement as to who will have the children on Christmas, don’t ask them where they want to be. Don’t convey messages to the other parent through your children and certainly don’t have your children advocate to the other parent on your behalf. Children of separated parents deal with enough stress and pressure, putting them in the middle doesn’t do them any favors.If there is ever a time of year to keep the peace for the sake of your children, the holidays are it.

Clients are often shocked at what they have to pay to their soon-to-be ex-spouse while a divorce case slowly winds through the system. In Pennsylvania, after a divorce complaint is filed but before a divorce decree is entered, the spouse who makes more money has to pay the other alimony pendente lite or “APL.” 

The presumptive amount of APL is calculated as 40% of the difference of the parties’ net incomes (or 30% if there are minor children). Judges can deviate from that amount of support based on different factors, though. Many would argue that in reality, that rarely happens. 

It is surprising to many people new to the divorce world that a spouse who receives APL does not have to prove that they actually need that amount of money.

A recent Superior Court case, however, suggests that “need” may be more of a factor than previously thought.

In Carney v. Carney, 2017 PA Super 218 (July 11, 2017), the husband made about $57,000 per month after taxes. Although the judge noted that the support guideline formula suggested that the wife be awarded $22,000 per month in APL, the judge found this amount was excessive under the circumstances as the wife did not testify to any additional expenses or needs.

Instead, the judge modified Wife’s APL award to $12,000 each month, which the court deemed appropriate to allow Wife to live independently and to provide her with the resources to litigate the divorce action. The Superior Court found that amount to be reasonable and rejected the husband’s claim that the judge committed an error but not setting the amount even lower.

The Superior Court held that APL is an order for temporary support granted to a spouse during the pendency of a divorce and is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse. APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare. APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for the purpose, which turns on the economic resources available to the spouse.

In ruling on a claim for APL, the judge should consider: the ability of the other party to pay; the separate estate and income of the petitioning party; and the character, situation, and surroundings of the parties.

A few months ago, House Bill 1250 was introduced in the Pennsylvania Legislature, which essentially would require APL awards be based on basic needs and not a formula. There is conflicting reports as to the status of that Bill.

In any case, based on the Carney case, an argument can certainly be made that a judge should consider what a spouse actually needs when ordering APL. This could be a drastic departure from what the formula provides and have a wide impact on many going through a divorce. 

By: Andrew D. Taylor, Esq.

One of the most common questions I hear is: how does my spouse’s infidelity factor into my divorce? She/he doesn’t get custody of the kids, right? I get all of the assets and lifetime alimony, right? The answer is that, while adultery can be relevant, it often has little impact on a divorce in Pennsylvania.

First, let’s dispel some common myths. If you cheat on your significant other, you do not loose custody of the kids. If you have an affair, you do not have to give the other spouse all of your assets or pay them lifetime alimony. In most circumstances, as hard as it is for many to believe, adultery plays no role in a divorce.

Pennsylvania is both a fault and no-fault state. The vast majority of cases are no-fault, meaning that the parties can obtain grounds for divorce without assigning blame to the other, but instead by agreement or by being separated for a period of time. That said, the option still exists for a spouse to obtain grounds for divorce based on adultery if they want; hardly anyone does, though, as it takes more time and litigation (read legal fees) and judges tend to frown on wading through a sea other people’s dirty laundry.

Marital misconduct, which includes adultery, is a relevant factor in deciding whether a spouse should receive alimony. For that reason, if an alimony claim is raised, even in a no-fault divorce, adultery would be relevant; however, in practice it rarely results in a much of a difference. Adultery can be used to prevent a cheating spouse from receiving alimony or to bolster an innocent spouse’s claim for alimony.

Affairs generally have no impact on child custody disputes. Judges will look to whether the girlfriend/boyfriend has a criminal past or is a danger to the children if they are around the children. Cheating on your spouse might make you a bad husband or wife, but it does not disqualify you from being a parent.

When adultery is relevant (like when an alimony claim is raised), proving it can be pursued and sometimes used as leverage to resolve a case. Often when one party is questioned under oath about whether they cheated, with whom they cheated, etc., cases all of the sudden seem to settle to the innocent spouse’s advantage.

For more information on the role of adultery in your divorce case, contact me at ataylor@shemtoblaw.com

  By: Andrew D. Taylor, Esq. 

Imagine the horrific scenario where one parent shoots the other during a custody exchange, is convicted of attempted homicide and sentenced to prison. It is safe to assume that the incarcerated parent will not be seeing the kids, right? Wrong.   To some, it may seem odd that an incarcerated parent might be entitled to visits with their minor children. In Pennsylvania, however, under certain circumstances, a court can require a child to visit his or her parent in prison. This concept was reaffirmed in the recent case of M.G. v. L.D.

            In M.G., Mother and M.G., who were in a same-sex relationship, adopted each other’s children. Tragically, during a custody exchange in 2013, Mother shot M.G., who was in her car, several times in the presence of both children. M.G. escaped grievous injury, but spent a few days in the hospital. Mother was arrested, tried, and convicted of attempted homicide and endangering the welfare of children. She was sentenced to 22-52 years in prison.

            Grandfather (Mother’s father) filed for custody of M.G.D. (Mother’s child) after the shooting. The court determined that Grandfather did not have standing to pursue custody, but did allow him to exercise partial custody, but set no real schedule. The court also appointed a child advocate (attorney representing the children) and prohibited anyone except the child advocate from discussing Mother’s criminal case with M.G.D. 

          Litigation continued as Grandfather filed petitions to modify custody. Mother also sought contact with the child. A trial was held and the focus was the grandfather’s interaction with M.G.D., the grandfather’s ongoing concern about M.G.D.’s welfare around E.G.D. (L.D.’s child) and Grandfather’s attempts to “pump” his granddaughter for information. 

          In the end, the trial court entered an order denying Grandfather’s request for partial physical custody and denying Mother’s request for weekly telephone contact. The judge allowed Mother only to mail her daughter one letter per week, subject to the child advocate’s approval. Mother and Grandfather appealed.

            The Pennsylvania Superior Court reversed the trial court in a lengthy opinion for (among other reasons) failing to consider whether M.G.D. should see Mother in prison. The Superior Court stated that prison visit cases involve additional factors unique to that scenario that courts must consider in evaluating the overarching best interests of the child. For example courts mus consider: (1) the age of the child; (2) the distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit; (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past; (8) the nature of the criminal conduct that culminated in the parent’s incarceration.

            In M.G., the judge found that permitting phone calls or phone visits would be detrimental to the child because Mother continued to maintain that she was innocent of shooting M.G. However, in reaching this conclusion, the judge did not consider the eight factors above and was therefore reversed.

            While the judge in M.G may not have technically analyzed all of the factors, it stands to reason the judge justifiably had concerns about the child visiting with Mother in jail. Given Mother’s conduct of maintaining her innocence, grandfather pumping the child for information, and the added stress of forcing the child to see her mother in jail, it makes little sense that there would be a scenario where this child’s best interest would be served by forcing contact between Mother and the child. If ever there was a case where contact between a parent and a child should be severely restricted, this one seems to be it. 

 

By Andrew D. Taylor, Esq. 

   Almost four years ago, the Pennsylvania Supreme Court abolished parent coordination in Pennsylvania. 
      Many high conflict custody cases were left in the lurch and parents had to once again file petitions to have a judge decide even the smallest of custody disputes. However, parent coordination in Pennsylvania may soon get a second chance at life after all.

What is Parent Coordination?

         Generally speaking, parent coordinators were typically either family law attorneys or mental health professionals who resolved disputes between parents in high-conflict custody cases. When disputes arose between the parents on relatively “minor” issues, parent coordinators would either meet with the parties, conduct a phone call, or communicate via email to get both parents’ stories, and make a decision. An example would be if there was a dispute about a pick up time, whose holiday it was, interpretation of a vacation provision in a custody order, whether to enroll a child in a sport, etc. 

          While a parent coordinator could not make major custody decisions, they could quickly (and cheaply) deal with minor issues that would otherwise require filing a petition and going to court. What could cost thousands of dollars in counsel fees and weeks or months of waiting to get a resolution by a judge, could be resolved by a parent coordinator in a couple of days. If one of the parents was dissatisfied with the decision, they could object to it and the judge who would make the final decision. In the meantime, the parent coordinator’s decision would control.

Parent Coordination Abolished

           In April 2013, the Pennsylvania Supreme Court abolished parent coordination. The mindset at that time from one or more of the justices was that only judges could decide issues of custody (regardless of how small the issues were) and a court could not delegate its decision making responsibility to a third party. 

            Following the elimination of parent coordination, many judges, family law attorneys, and parents were left with major headaches. Minor issues (but major issues to the parents and children) which were time-sensitive could no longer be resolved timely due to the backlog of the court system. Arguably, this lack of resolution only increased the level of conflict between the parties (and ultimately had a negative effect on the children involved). 

  Recommendation 155

            The Pennsylvania Supreme Court Domestic Relations Rules Committee, at the end of 2016, drafted Recommendation 155, which, if adopted by the Supreme Court, would revive parent coordination in Pennsylvania. The Recommendation can be found by clicking here. The public comment period for Recommendation 155 closed in February of 2017. This means that the Pennsylvania Supreme Court is now considering adopting this Recommendation and making it into a Rule. As of today’s date, there has been no word on whether the Supreme Court will adopt this rule, adopt it with changes, or outright reject it. 

            Recommendation 155 places strict requirements on a trial judge’s appointment of a parent coordinator. Previously, there was no real guidance given to trial courts as to what they could or could not do in the appointment of a parent coordinator. Of particular note, Recommendation 155 requires that a parent coordinator be an attorney licensed to practice in the Commonwealth of Pennsylvania and have actually practiced family law for at least five years. The attorney-parent coordinator is also required to have training in the parent coordination process, family mediation, domestic violence, and maintain additional education credits on parent coordination. The Recommendation gives specific examples of what a parent coordinator can decide (times and places for custody transfers, temporary variation from the schedules, the children’s participation in extracurricular activities, etc.) and specifically prohibits a parent coordinator from deciding other major issues (a change in legal custody, a change in primary custody, a relocation, financial issues, major decisions regarding health, education, and religion of the children).

            The recommended rule requires a parent coordinator to issue a written recommendation to the court. Any party disagreeing with the recommendation must file a written objection within ten days or the recommendation may become an order. If a party objects, a court must have a hearing on the issues as soon as possible. However, in the meantime, the parent coordinator’s recommendation acts as a temporary order binding on the parties. Recommendation 155 also contains form orders that judges and parent coordinators must use.

            Parent coordination serves to quickly resolve time-sensitive issues that may seem minor and insignificant to some, but are usually very important to one or both of the parents (and children) involved. Parent coordination is a creative way to resolve disputes quickly. Recommendation 155 seems to strike a balance between concerns that a judge may not abdicate decision-making responsibility and the need for quick resolutions in custody matters. With any luck, the Supreme Court will adopt Recommendation 155 and resurrect parent coordination in Pennsylvania.

By: Andrew D. Taylor, Esq. 

         Every few years the Pennsylvania Child Support Guidelines are reviewed and changed. On May 1,2017 new Guidelines go into effect. They can be found here. 
While the actual support amount figures generally don’t change drastically, every little increase can help a custodial parent.   In Pennsylvania, whenever the Guidelines are amended, a parent is entitled to file a modification of support and have their case reviewed. The change to the Guidelines constitutes a substantial change in circumstances allowing a parent to file a petition to modify. 

Before filing to modify support though, careful thought should be given to all circumstances. If a petition to increase support is field, but when you get to court the circumstances warrant a decrease in support, the support amount actually goes down. This could happen if the parent paying support is making less money than when the last support order was entered, the parent receiving support is making more money, daycare costs have changed, medical insurance costs have changed, etc. 

The bottom line is that a change in the support amount may be warranted based on the new Guidelines. However, make sure you consult with an attorney and review all circumstances and perform support calculations before filing a petition and going to court.