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Divorce Law in the Fifty States – Pennsylvania – 2012-2013

By: Lindsay C. Hanifan, Esquire

Agreements

Lugg v. Lugg, 63 A.3d 1109 (Pa. Super. 2013). A party to a postnuptial agreement can waive full economic disclosure. Frequent and direct pressure from the other party to sign a postnuptial agreement does not rise to the level of duress necessary to invalidate a postnuptial agreement, even where both parties are represented by attorneys but they sign the agreement without counsel present.

Child Abuse

Commonwealth v. Hunter, 60 A.3d 156 (Pa. Super. 2013). Where stepmother of a child charged with crimes related to abuse of that child, text messages that she sent to her husband, the father of the child, about the child’s health after the alleged abuse could be admitted as evidence. The confidential spousal communication privilege does not apply because the stepmother could not have had a reasonable expectation that the text messages would remain confidential. The text messages were also not confidential because stepmother had testified about them during the hearing with Child and Youth Services.

G.V. v. Department of Public Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012). Although the standard for determining whether child abuse has occurred is whether there is substantial evidence to support such determination, the standard necessary to maintain information from an indicated report on the ChildLine & Abuse Registry is whether there is clear and convincing evidence that child abuse occurred. In reaching such conclusion, the Commonwealth Court noted that the private interests at stake include the perpetrator’s reputation, livelihood, and other personal freedoms, which are more substantial the just financial loss. Because there is a risk of erroneous deprivation of such private interests, and the government’s interest of protecting children from abuse can still be met by allowing an indicated report to be based upon substantial evidence, a higher standard should be required before disclosing the perpetrator’s name and other personal information on the ChildLine & Abuse Registry.

J.M. v. D.P.W., 52 A.3d 552 (Pa. Cmwlth. 2012). In an administrative appeal to expunge an indicated report of child abuse, it was improper for the Administrative Law Judge to admit into evidence a DVD of the interview of the child without first finding that the child was unavailable as a witness and determining that the interview contained sufficient indicia of reliability. Without such a determination, the videotaped interview constituted inadmissible hearsay. When deciding whether the child was unavailable as a witness, it was improper for the Administrative Law Judge to question the child while the defendant father was present.

T.D. v. D.P.W., 54 A.3d 437 (Pa. Cmwlth. 2012). Statements that mother made to a sexual assault counselor regarding her intention to kill herself and her daughter were properly admitted into evidence through testimony of the counselor. Although the sexual assault counselor privilege protects statements that mother made to the counselor regarding prior sexual assault, such privilege does not apply to evidence regarding child abuse.

In the Int. of: T.D., Jr., 57 A.3d 650 (Pa. Super. 2012). Because the Custody Act, 23 Pa.C.S. §5329, does not apply to delinquency proceedings, it was improper for the juvenile court to use such Act as its authority to order for the parent of a child who has been adjudicated delinquent to undergo a drug and alcohol evaluation. However, the juvenile court has authority to order a parent to obtain a drug and alcohol evaluation pursuant to Section 6352 of Juvenile Act, 42 Pa.C.S. §6352, which grants the juvenile court broad discretion to protect the safety and welfare of children. The juvenile court can impose conditions on those who wish to continue parenting their children after a finding of delinquency. Because a parent is not a party to a delinquency proceeding, she is not entitled to the appointment of counsel before the imposition of such conditions.

In re S.H., 71 A.3d 973 (Pa. Super. 2013). An order granting a grandparent permanent legal custody of a child who has been adjudicated dependent does not prohibit a parent of the child from later petitioning the juvenile court to regain custody of the child. Although an order for permanent legal custody marks the end of the juvenile court’s intervention and the county agency’s supervision of a matter, it does not terminate parental rights.

In the Int. of K.M., 53 A.3d 781 (Pa. Super. 2012). In a proceeding for the involuntary termination of parental rights in which an attorney was appointed as guardian ad litem for the child, it was not error for the trial court to deny parent’s motion for appointment of counsel for the child. There is no statute precluding an attorney who is acting as a guardian ad litem to also serve as legal counsel for a child in a termination proceeding.

In the Mtr. of Adopt. of: R.K.Y., 72 A.3d 669 (Pa. Super. 2013). Because an expert can rely on hearsay when reaching a conclusion, it was not an error of law for the trial court to admit statements allegedly made by children during interviews with an expert conducting a psycho-sexual evaluation of the children. The statements, however, are only admissible to show the basis of the expert’s opinion and the state of mind of the children, and not as substantive evidence of the truth of the accusations.

In the Mtr. of E.M.I., 57 A.3d 1278 (Pa. Super. 2012). Although same-sex partners can adopt a child together under Pennsylvania law, because Pennsylvania does not recognize same-sex marriages, they cannot adopt as a spouse or step-parent. Instead, the same-sex partner of a parent must proceed with a “non-spouse adoption” and the parent must prove that the same-sex partner intends to adopt the child before the other parent’s parental rights will be terminated. Where the parent and her same-sex partner had only been dating for three years, had never lived on their own with the child as a defined family unit, and anticipated living apart after the partner joined the military, the parent failed to prove the viability of the proposed adoption of the child and her petition for involuntary termination of parental rights of the other parent was properly denied.

Child Custody and Visitation

M.E.V. v. R.D.V., 57 A.3d 126 (Pa. Super. 2012). Where mother and father lived in New Jersey, and mother temporarily moved with the parties’ two children to Pennsylvania after finding out about father’s infidelity, New Jersey remained the home state of the children for purposes of child custody. Because father filed a divorce complaint in New Jersey, including a claim for child custody, before mother filed a custody complaint in Pennsylvania, the Pennsylvania trial court lacked jurisdiction to dismiss father’s preliminary objections to mother’s custody complaint. It was an abuse of discretion that the Pennsylvania trial court did not contact the New Jersey court pursuant to 23 Pa.C.S. §5426(b) prior to deciding whether to exercise or decline jurisdiction.

M.M. v. L.M., 55 A.3d 1167 (Pa. Super. 2012). Where father in a custody action submitted to a court-ordered psychological evaluation, consented to the deposition of his treating psychiatrist and authorized the release of specific information relating to compliance with his treatment, he did not waive his claim of confidentiality of his mental health records under the Mental Health Procedures Act, 50 P.S. §7103, et seq. The court’s concern with the severity of father’s bipolar personality disorder could be addressed through the court-ordered psychological evaluation and did not require disclosure of privileged information.

M.J.M. v. M.L.G., 63 A.3d 331 (Pa. Super. 2013). Although the Custody Act requires the trial court to consider each of the sixteen factors in 23 Pa.C.S. §5328(a) when making a custody decision, and requires that the court articulate its reasons for the custody decision in open court, written opinion or order, there is no requisite level of detail that the court must include in its opinion or order. Because only the factors that affect the safety of the child are to be given “weighted consideration,” the primary caretaker doctrine should not be applied. Instead, the court can consider the parental duties that each party performed for the child, and the need for stability and continuity in the child’s life, along with the other enumerated factors in 23 Pa.C.S. §5328(a).

C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013). The Child Custody Act, which took effect in January 2011, requires the trial court to specify its reasons for a child custody decision, including a discussion of all factors enumerated in 23 Pa.C.S. §5328(a), no later than the deadline by which a party must file a notice of appeal, but preferably at the time the custody decision is entered or shortly thereafter.

M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012). Where mother was granted sole legal and primary physical custody of the child, and father had supervised partial physical custody, it was improper for the trial court to prohibit mother from traveling to Ecuador with the child based upon father’s objection. Because mother had sole legal custody, she had final authority to make such a decision and did not need father’s consent.

L.A.L. v. V.D., 72 A.3d 690 (Pa. Super. 2013). Grandparents of a child born out of wedlock have standing to seek custody of the child when the child’s parents have been separated for at least six months, regardless of whether the child’s parents ever married each other.

E.T.S. v. S.L.H., 54 A.3d 880 (Pa. Super. 2012). Where the adoptive mother of two children lived with her boyfriend for almost two years after she began exercising shared legal and physical custody of the children, but the boyfriend moved out of the adoptive mother’s residence shortly before adoption of the children was finalized, the Superior Court affirmed the trial court’s Order sustaining the adoptive mother’s preliminary objections to the boyfriend’s complaint for custody. Because the adoption served to terminate any in loco parentis status that the boyfriend may have had prior to the adoption, and he had no relationship with the children after the adoption, the boyfriend lacked standing to seek custody of the children.

P.H.D. v. R.R.D., 56 A.3d 702 (Pa. Super. 2012). Where mother filed a contempt petition against father in custody matter, but no motion for clarification or petition for modification was filed, it was a violation of father’s due process for the trial court to enter ancillary relief at time of denying mother’s contempt petition.

G.A. v. D.L., 72 A.3d 264 (Pa. Super. 2013). Where father filed a contempt petition against mother in custody matter, but no petition for modification was filed, the trial court abused its discretion by reinstating a previous child custody order, essentially modifying the current custody order.

A.M.S. v. M.R.C., 2013 Pa Super 156 (June 28, 2013). When making a decision on relocation and where the issue of child custody is also involved, the court must consider all ten relocation factors pursuant to 23 Pa.C.S. §5337(h) and all sixteen custody factors pursuant to 23 Pa.C.S. §5328(a).

Child Support

Porczynski v. Porczynski, 105 Berks Co. L.J. 105 (Nov. 16, 2012). The court denied Husband’s petition for special relief seeking a DNA test to establish paternity. Paternity by estoppel applied as Husband already had a paternity test which confirmed he was not the child’s biological father. After the paternity test, Husband reduced his custodial time from 50/50 to every other weekend. Nevertheless, Husband continued to hold himself out as the child’s father, continued to treat the child as his own, took the child to his family functions and attended events at her school.

K.J.P. v. R.A.P., 2013 Pa Super 126 (May 22, 2013). The Court did not err by failing to deduct the net loss from the sale of the payor’s residence when calculating his net income available for child and spousal support. The payor, who appeared pro se, referred to himself as a “house flipper”. He regularly engaged in the renovation and sale of properties and owned as many as twenty properties at one time. Payor argued the property in question was held as a commercial property. However, payor acknowledged he resided in said property for approximately two years. The court determined the property sold was payor’s primary residence and therefore it was appropriate not to include the net loss from the sale of the property in his net income available for support.

Suzanne D. v. Stephen W., 2013 Pa Super 93 (April 22, 2013). While a gift does not meet the statutory definition of income, it may be a reason to deviate from the guidelines amount for child support. Father (payor) acknowledged that prior to separation he received gifts from his father (paternal grandfather) to aid with living expenses. Post separation, Father claimed these transfers of money became loans and presented a demand note. The trial court did not find Father’s position credible as under the terms of the note it is possible that that Father would not make any repayments. When the court determines money received as a gift may never need to be repaid, it is not an abuse of discretion to consider the money received as a reason to deviate from the guidelines child support amount.

Dissolving the Marital Relationship

Reece v. Reece, 2013 Pa Super 112 (May 10, 2013). A divorce decree was not entered prematurely when more than 90 days had passed between the filing of the complaint and entry of the decree. Pursuant to 23 Pa. C.S.A. § 3301(c), a divorce decree may be entered 90 days after the commencement of a divorce action. The divorce action is commenced when the divorce complaint is filed, not when it is served. The affidavit of consent required by 23 Pa. C.S.A. § 3301(c) may be executed on the 90th day after service of the divorce complaint.

Domestic Violence

Ferko-Fox v. Fox, 2013 Pa Super 88 (April 17, 2013). The allegations of a Protection from Abuse (PFA) petition are not sufficient to sustain the required finding of immediate and present danger of abuse. Here, the trial court reviewed the verified Protection from Abuse petition in camera, without any parties present, to establish an immediate and present danger of abuse. The Superior Court found the trial court must conduct an ex parte proceeding to test the veracity of the petition’s assertions before issuing a temporary PFA order.

Paternity

V.E. v. W.M., 2012 Pa Super 203 (Sept. 24, 2012). Mother files for child support when child, who was born out of wedlock, was nine days old. Defendant files preliminary objections claiming he is not the biological father of the child. Defendant raises paternity by estoppel claiming Mother has accepted defendant’s father (W.M., Sr.) as the father of the minor child. Defendant claims W.M. Sr. signed the child’s birth certificate and has held the child out as his own. The trial court found as a matter of law paternity by estoppel is not applicable as the child was only four months old at the time of Defendant’s preliminary objections hearing. The trial court denied a hearing on paternity by estoppel and ordered Defendant to undergo genetic testing. Defendant appealed claiming the trail court erred by ordering genetic testing without an evidentiary hearing. The Superior Court found when a child is born out of wedlock, a hearing is not required before the court may order genetic testing.