Third Party Standing in Custody Cases: Recent Cases

As a result of a recent Superior Court decision, it appears the rights of third party custody litigants have been further tightened.  Earlier, I discussed the Supreme Court’s ruling that impacted standing of grandparents.  This decision, issued on March 6, 2017, tackles situations of custody participants who assert standing under the in loco parentis section of the statute.

In K.W. v. S.L & M.L. v. G.G., Mother apparently did not inform Father of her pregnancy.  Rather, approximately 5 months prior to the child’s birth, Mother contacted Bethany Christian Services to place the child for adoption.  With Mother’s help, BCS did conduct a search for Father, which included letters to his last known address and some Facebook messages and friend requests.  Meanwhile, two days after the child’s birth, the child was placed with S.L. and M.L. as prospective adoptive parents.

Father received the letters from BCS on September 19, 2015, approximately one month after the child’s birth and placement with S.L and M.L.  Father contacted BCS to set up a meeting and, on approximately October 14, 2015, Father informed BCS that he did not want the child to be adopted.  Soon thereafter, Father filed a custody action in Centre County, naming only Mother and Father as parties. He also requested that BCS be ordered to disclose the whereabouts of the child.  The Court granted primary custody to S.L. and M.L. and awarded partial custody to Father.  In addition, the action was transferred to Lycoming County (Father’s home).  S.L. and M.L. filed a separate custody action in their home county, York and, in a separate filing, challenged Centre County’s transfer of the action to Lycoming County.  The end result of all of these filings is that the matter continued in York County.  Based on one of the arguments made by Father, the York County Court heard the issue of whether S.L. and M.L. had standing in the custody action. 

Generally, the only non-parent, grandparent or great-grandparent who has standing to seek custody of a child is one who stands in loco parentis to the child.  In loco parentis literally means “in the place of a parent.”  More specifically, a person is considered in loco parentis if he assumes the obligations incident to the parental relationship without going through the formality of a legal adoption.  There are typically two considerations in a determination of “in loco parentis”: (1) assuming parental status and (2) discharge of parental duties.  Importantly, you cannot be in loco parentis of a child without the consent and knowledge of a parent.

The York County court found that S.L. and M.L. did have standing (that they were in loco parentis).  The Superior Court, however, reversed that decision and held that Father did not consent to the placement through BCS and, therefore, S.L. and M.L. could not be in loco parentis of the child.  As such, they did not have standing to pursue any custody of the child, even though the child had been with them, in their home, for the entirety of her 18 months of life.

The court focused on whether Father gave “implied consent” for placement with S.L. and M.L. through BCS.  Essentially, the inquiry was into whether, by waiting one month to affirmatively object to the placement, Father “consented” to the placement.  The Court found that Father’s objection was prompt and, therefore, not consistent with consenting to the placement and adoption.  The Court compared that to a prior case where a father failed to be involved in his child’s life for a year.  In that case, the father’s conduct was consistent with consent to placement with another.

The Superior Court here indicated it was cognizant of the impact this decision would have on this child and S.L and M.L, who have “parented” this child for a year and a half.  This decision legally cuts them out of the child’s life.  However, the court felt that a parent’s fundamental constitutional right to care for a child (and the legal presumption that a parent is fit) outweighs the sympathy felt for the prospective adoptive parents and, as such, Father has a right to parent this child absent interference from a third party.

There are two practical implications of this decision – one to foster or prospective adoptive parents and the other to a parent who has minimal or no contact with the child.  For these third party individuals (whether foster parents, uncle or aunt or any other who may care for a child for any length of time), doing so without clear consent of both parents could result in a situation where the child is taken and that person is left with no legal recourse, unless he can prove that the parent is unfit.  On the other hand, a parent should be conscious of not waiting too long to object or assert parental rights.  The court  here was careful not to establish a bright line rule about what length of time tips the scale from consistent to inconsistent with consenting to placement, however did give some guidelines for attorneys and litigants to follow.

K.W. v. S.L. and M.L. v. G.G. (2017 PA. Super 56), March 6, 2017.

The Individualized Nature of Child Support

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Support

Perhaps the most common “but I know a guy” conversation I have is in child and spousal support situations.  Support calculations/orders are extremely individualized as they deal with the parties’ incomes, above all else.  The legislature has dictated how a support obligation is to be calculated.  Most simply, the monthly incomes of the parties are combined (with some deductions for income taxes and other variables).  The legislature has assigned a basic support obligation based on the parties’ combined net income and the number of children to be supported.  This basic support obligation amount is found in a chart in Rule 1910.16-3 of the Pennsylvania Rules of Civil Procedure.  Once the number on that chart is identified, a percentage of that number is assigned to each party as their monthly contribution toward the support of the child(ren).  Then, typically the non-custodial parent, will pay his or her percentage to the other party. 

The method of calculation outlined above occurs in situations where the parties have defined incomes and no circumstances which may warrant a change from the support amount in Rule 1910.16-3.  However, this is not often the case.  Custodial arrangement, childcare costs, private school tuition and medical insurance costs often result in adjustments of the calculation of support amount.  For example, the parent who pays the health insurance for the child(ren) will get “credit” for that payment, either in an increased child support payment (if the health insurance is paid by the parent who receives the support) or in a decrease in the child support payment (if the health insurance is paid by the parent who pays the support).

Additionally, Rule 1910.16-5(b) provides several ways that a court may deviate from the support calculation.  Some of the deviations that may be considered by a court include:

  1. Unusual needs and unusual fixed obligations of the parties;
  2. Other income in the household;
  3. Any other support obligations of the parties.

These deviations are at the discretion of the court and the court may decide to make a slight, large or no deviation from the calculation.  These deviations are separate from the adjustments that are discussed above (i.e. childcare, tuition, custodial arrangement).

In addition to deviations and adjustments, there are a few other circumstances that can change a support amount.  Sometimes, for example, one party argues that the income of the other is not up to his or her potential, given that party’s education or past work history.  If that is persuasive, the court can assign an earning capacity to that party which is higher than his or her actual earnings. 

The situations mentioned in this post are only a few of those that can be argued in a support matter.  The Pennsylvania Rules of Civil Procedure, which largely govern support matters, provide much information for the calculation of a support obligation and potential for deviation from that basic support obligation.  Family law attorneys are typically well versed in these matters and can advise clients on what potential deviations or factors may affect a child or spousal support order.

How Custody Factors can affect a Custody Schedule

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Custody

The legislature has outlined the factors that are required to be considered in a making a decision in a custody case.  There are a total of 15 concrete factors and a 16th which allows the judge to consider “any other relevant factor.”  Those factors, listed at 23 Pa.C.S.A. 5328 include the following: which party is more likely to encourage and permit frequent and continuing contact between the child and another party, the need for stability and continuity in the child’s education, family life and community life and which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs, and others.  Parents (or grandparents) in a custody action often point to one specific trait or issue of the other parent in defense of why that other parent should get no or minimal custodial time with the child.  However, typically no one factor is going to make the determination.  The law requires that all the factors (if applicable to the particular case) be weighed and considered in making a custody determination.  In other words, the fact that the other parent has three DUI's from 5 years ago or has a spotty work history or has a had multiple boyfriends and residences in the past 2 years may be persuasive, but are not the sole issues that a judge will consider. 

 In looking at these factors, the court is guided by the singular principle of custody law – doing what is in the “best interest of the child.”  While the legislature provided guidance in making this decision in creating the list of factors discussed above, ultimately it is up to the judge to weigh which factor or factors are most persuasive given the circumstances of your specific situation.  As in most areas of family law, there are exceptions to every rule and each situation is different, though on the surface it may appear the same. 

An example of the individualized nature of these decisions lies within one of the factors listed in section 5328 is “the well-reasoned preference of the child, based on the child’s maturity and judgment”.   Under the law, the child does not get to decide where he/she lives.  The age, maturity level and intellect of the child will often affect how much weight will be given to his/her preference, provided the child’s preference is “well-reasoned.”  However, there is no magic age, grade level or I.Q. where the child’s preference automatically rules the outcome.  Like all other factors, this is just one that the judge must consider and weigh among and against all of the other factors.

An experienced attorney, in preparing a custody case, will ensure that all relevant factors listed in section 5328 are presented to the judge, allowing the judge to make a reasoned and informed decision.  Remember that, generally, the only information a judge has about your situation is what is presented to him or her during the custody hearing.  If the judge does not have the evidence to consider on a particular factor, the judge cannot utilize that factor in making his or her decision and it could result in an undesirable ruling. 

 

Divorce and Equitable Distribution

So often I hear how a particular outcome in a custody, divorce or support matter is “unfair” because my client “knows a guy” who didn’t have to give up as much or got a better custody arrangement or had a significantly different support order.  A client will often compare her situation to a relative, a friend or a co-worker and wonder why things turn out differently for her.  As attorneys, we try to give clients the best advice given the circumstances of each client’s situation, but that will not necessarily be the same as your sister, friend or coworker.  This series of blog posts will attempt to shed some light onto some of the reasons for the differing outcomes in family law cases.

Divorce and Equitable Distribution

In the process of a divorce, the division of marital property in Pennsylvania is governed by the legal concept of equitable distribution (marital property is defined generally as all property acquired during the marriage, regardless of how it is titled).  Essentially, what this means is that the division of marital property be done in a way that is fair (or equitable) to both parties.  This does not always mean a 50/50 split. In fact, the court is not permitted to start with the presumption of a 50/50 split.  Rather, the division is dependent on several factors identified by the legislature that must be considered in making an equitable distribution decision.  These factors, found in the Divorce Code, include things such as the length of the marriage, the opportunity of each party for future acquisitions of capital assets and income and the tax ramifications associated with the division of the assets.  There are many more factors listed by the legislature.  Not all factors identified in the Divorce Code are relevant in every divorce and in some situations some factors are given more weight than others.  Divorce attorneys are typically very familiar with these factors and use them in analyzing a likely or fair division of assets for their clients.

In the context of these factors, a couple’s situation can drastically affect the outcome of the case.  For example, the distribution of the assets in a two year marriage will likely be considerably different than in a 22 year marriage.  Similarly, a couple that is divorcing in their retirement years will likely have a much different distribution scheme than a couple in their 40s who are each working and will continue to generate income and assets.  Other situations which typically affect distribution are the existence and/or number of children of the parties, the existence of a prenuptial agreement and the work and educational history of each party. 

Simply put, family law in general – and equitable distribution in particular – is not one size fits all.  There are intricacies that play in to each and every situation.   In equitable distribution, those intricacies can make a significant difference in the division of marital assets and, as a result, a significant difference in each each party's financial status after divorce. 

No-Fault Separation Period Reduced to One Year

In 1980, the Divorce Code was amended to add no-fault divorces, allowing one spouse to obtain a divorce without the consent of the other spouse.  Initially, this no-fault divorce required a three year separation period.  In 1988, that separation period was reduced to two years.  On October 5, 2016, Governor Wolf signed Act 102 into law, reducing the waiting period to one year (effective in 60 days).  This change now allows one spouse to pursue a divorce after just one year of separation without the consent of the other spouse. 

In Pennsylvania, separation, for purposes of divorce, is defined as living separate and apart.  Section 3103 of the Divorce Code further defines “separate and apart” as the “cessation of cohabitation, whether living in the same residence or not.”  Sometimes, the spouses will agree on a date of separation (for example, the date one spouse moved out of the house or moved out of the marital bedroom) but there are occasions where the parties do not agree.  In these situations, a judicial decision may be required to set the date.  The date of separation is important not just for calculating the separation period in a no-fault divorce, as described above, but also for the identification/valuation of certain marital assets.

In making a determination on a date of separation, the fact-finder (the judge or divorce master) will look at all of the circumstances of the particular situation.  Generally, the test is whether the parties are still acting or living as husband and wife.  Some factors that a fact-finder may consider are:

  1. Whether the parties eat meals together,
  2. Whether they do household chores with or for the other party (cook, clean, laundry etc);
  3. Whether they spend holidays together;
  4. How or if the finances are divided;
  5. Whether they vacation together;
  6. Whether they go out together (meals, office parties etc);
  7. How they speak about the other spouse to third parties;
  8. Whether they are in counseling or therapy together.

The analysis of these factors (and others) is sometimes complicated by the presence of children, in that the fact-finder will consider whether the spouses are acting as a cohesive unit only for the benefit of the children (i.e. if they spend holidays together only because of the children) rather than because they still identify as husband and wife.  Generally, no one factor alone is enough to definitively identify a separation date.  However, the fact-finder will look to all of the factors applicable in making a determination.  The separation date is often crucial in divorce matters and can make a significant impact in the length of the divorce process and the financial distribution of assets.

Grandparents' Rights Take a Hit

With the decision on D.P. and B.P. v. G.J.P and A.P., (25 WAP 2015) on September 9, 2016, the Pennsylvania Supreme Court struck a blow to the previously broad rights of certain grandparents in Pennsylvania. 

In 2010, the “new” custody statute was enacted.  Section 5325 of that law, provided that:

 In addition to situations set forth in section 5324 (relating to standing for any form of physical or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:

(1)    Where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2)    Where the parents of the child have been separated for a period of at least six months or have commenced and continued a proceeding to dissolve their marriage; or

(3)    When the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after the removal of the child from the home.

In the D.P. case, the bolded language in sub-paragraph 2 above, which had previously granted standing to grandparents when the parents were separated for more than 6 months, has been stricken by the Supreme Court as unconstitutional.  The D.P. case arose out of a situation where the parents, separated for more than 6 months, had agreed that paternal grandparents (D.P. and B.P) should not be involved in the lives of their three children.  The parents had never sought court involvement and had always been able to work out all parenting issues and custody between themselves.  Grandparents, however, relying on paragraph 2 of section 5325, filed a custody action in Westmoreland County seeking partial custody of the three children.  There is no allegation of any neglect, abuse or any wrongdoing by either parent in this matter.  Rather, grandparents relied solely on the fact that the parents were separated for their contention that they had a right to sue for custody.

The trial court held that the six-month separation language was unconstitutional as it violated the parents’ right to raise their children as they see fit.  The trial court, therefore, threw out the custody lawsuit.  The grandparents appealed that decision and the Pennsylvania Supreme Court reviewed the matter.  In its analysis, the Supreme Court determined that the six-month separation language must be stricken as “it violates the fundamental rights of parents safeguarded by the Due Process Clause”.   The Court found that the government’s interest in safeguarding children from harm was not furthered by the language of this statute.  Specifically, the Court stated that “the fact of a parental separation for six months or more does not render the state’s parens patriate interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their children should associate.”

The Supreme Court specified that only the first part of paragraph 2 is stricken, though it seems the Court is inviting a similar challenge to the second part of paragraph 2.  Specifically, in footnote 17, the Court noted that it is certainly possible that divorced parents (or those who have filed for divorce) have similar co-parenting arrangements and agreements.  The Court indicates that because that specific factual situation is not before it, the Court cannot make a decision on the second half of paragraph 2.

This decision, while clearly eliminating the right of grandparents to seek partial custody when the parents are separated for more than 6 months, does not eliminate the right if the circumstance of the rest of section 5325 are met.  However, it does create some new issues – now a grandparent has standing to sue if the parents have filed for divorce but not if the parents have simply separated and not filed a divorce action or if the parents were never married.  So, as a result of this case, it is only the status of any divorce litigation which triggers standing under paragraph 2.  It seems inevitable that the remaining language of paragraph 2 will be challenged for this reason.