Divorce - Pennsylvania Law Monitor

Free Speech vs. Best Interests of the Child: Can your Constitutional Rights Hurt You in a Custody Battle?

Stark & Stark — Wed, 03 Aug 2011 14:23:40 -0500

The answer: absolutely!

A recent Bucks County custody battle involved a father who created a website which, among other things, related his experiences with the Bucks County court system. Included on the website were blogs which referenced his ex-wife. These references were described by the judge hearing his custody case as “denigrating and belittling comments about mother”. The judge further advised father “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive”. Purportedly, the judge then ordered the website shut down and ordered father to stop blogging. The father has filed an appeal claiming the judge’s order violates his constitutional rights to free speech.

Whether or not the judge’s order violates father’s right to free speech is a separate issue from whether the judge can use the website information and blogs as evidence in the custody case.

Pennsylvania has recently detailed the factors a judge must consider in awarding custody. The relevant factors in this case include:

The level of conflict between the parties and the willingness and ability of the parties to cooperate together.
The attempts of a parent to turn the child against the other parent
Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
The present and past abuse committed by a party or member of the party’s household.

Additionally, research is conclusive across the board and child custody experts are unanimous: the more animosity displayed between parents, the greater the negative impact on the children.

While the father can proudly, and in all likelihood legally, stand up and champion his First Amendment rights - he does it with a price. While he may win in his appeal, he will lose in custody and, most importantly, in his relationship with his children.

The internet and various forms of social media are playing larger and more significant roles in custody disputes. It’s important for a parent who contemplates custody litigation to consult with an attorney experienced in these issues so they can put themselves in the best possible position to obtain a favorable outcome.

Alimony Reform: For Better or for Worse

Stark & Stark — Thu, 21 Jul 2011 08:08:22 -0500

Alimony reform appears to be gaining momentum across the country. Last month New York State modified their alimony laws by adopting a formula for setting alimony thus making alimony fairer and easier to predict. Massachusetts is currently considering a bill that would cap the duration of alimony based upon the length of marriage.

Are these reforms a good idea? Certainly the use of a formula to determine alimony will take much of the guess work away from parties and their lawyers which should, in turn, lead to more cases settling rather than being tried before a judge. Additionally, the formula should put an end to extreme alimony awards and make the awards much more consistent in each case.

What happens in a Bucks County or Montgomery County Divorce?
Pennsylvania follows a similar “formula” type approach as New York State just adopted. But Pennsylvania only applies this to “temporary alimony” (also known as alimony pendent lite) which is in effect until the Divorce is finalized. To determine an alimony award (or support after the marriage is over) Pennsylvania, and the majority of other states, use various factors such as: length of marriage; respective income of each party; assets distributed to each party; ages and health; marital misconduct; etc. The use of these factors, and which factors are more heavily weighed, varies dramatically from Court to Court and Judge to Judge. As a result alimony awards are highly unpredictable.

Changing alimony awards from a gamble to something more predictable should make the divorce process much fairer and reduce litigation.

If you are considering a divorce or even just separation, it is important to consult with an attorney to discuss how much, if any, support you can expect to receive and for how long.

What Would Happen if the Aarnold Schwarzenegger Case Took Place in Pennsylvania?

Stark & Stark — Mon, 23 May 2011 09:42:08 -0500

Ok, so Arnold fathers a child with his maid, Mildred Baena. Arnold is married and, at the time, Baena was married. The child is now around 14 years old and Baena is now divorced.

So who pays child support? Arnold or Baena’s ex husband?
If this happened in Bucks County, or any where in Pennsylvania, it could be Baena’s ex-husband and not Arnold.

How can that be?
The courts in Bucks County and throughout Pennsylvania, as in most states (California being one) have a “presumption of paternity.” This presumption, according to the Pennsylvania Supreme Court, is “one of the strongest presumptions known to the law.” The presumption is that a child conceived or born during the marriage is a child of that marriage. So regardless of who may have been the biological father, it will presumed that Baena’s husband, who was married to Baena when the child was conceived and born, is the legal father of the child. As such Arnold would have no right or obligation to the child.

So is Arnold, who is estimated to be worth $800 Million dollars, off the hook for child support?
Not necessarily. Under Pennsylvania law the presumption can be rebutted if, at the time of litigation for paternity, the marriage between the husband and wife is no longer intact. If this case was in Bucks County, Montgomery County or any where in Pennsylvania, now that Baena is divorced, paternity can be addressed.

Why does Baena’s marital status matter?
The public policy in Pennsylvania behind the presumption of paternity is the preservation of families, which should not be destroyed by a dispute over the parentage of a child conceived or born during marriage. A third party should not be allowed to attack the integrity of a functioning marital unit, based on public policy that children should be secure in knowing who their parents are. If a person has acted as a father and bonded with the child, the child should not be required to suffer the potentially damaging emotional trauma that may come from being told his father, who he has known all his life, is not in fact his father.

The Internet and Your Divorce

Stark & Stark — Mon, 25 Apr 2011 10:49:47 -0500

I’ve previously blogged about how various social mediums, Facebook in particular, can dramatically affect your marriage and your divorce. As I advise all my clients, we live in a very public world these days, the internet has opened windows into peoples’ lives; privacy is scarce. What you post online while alone at your computer is a message for the entire world to read.

A wife in New York was recently reminded of this. The wife was seeking permanent alimony from her husband due a disability which prevented her from working. Her claim was quickly rejected when her husband was able to introduce evidence of her being paid to belly dance. How did the husband find out? The wife was blogging about it on the internet. Even worse, when asked by a friend on Facebook why she wasn’t posting pictures of herself dancing, the wife replied, “Gotta be careful what goes online, pookies. The ex would love to fry me with that.”

And fried she was. The Court substantially slashed her alimony award, both in amount and duration, and awarded husband legal fees for wife’s tactics.

Lessons?
If you or someone you know is going through the divorce process, be sure to consult with an attorney experienced in the role social media plays in divorce cases. With the various number of social media outlets available to almost anyone these days, it's crucial to your case that you have someone on your side who will ensure that your rights, interests and privacy is protected.

Child Custody in Pennsylvania: "Best Interests" Enumerated Under New Law

Stark & Stark — Tue, 08 Mar 2011 14:28:00 -0500

On January 24th of this year, child custody law in Pennsylvania changed. Previously, child custody disputes where decided by a judge based upon the “best interests of the child” standard. This broad standard gave litigants, counsel and judges broad discretion in deciding what facts and factors constituted “best interests.” The new law helps focus the best interest inquiry and will aid in removing personal biases of judges, create more uniformity in decisions, and allow for better reasoned and more child-centric custody decisions.

Starting January 24th, the court must now “give weighted consideration” to the following 16 “best interest” factors:

Which party is more likely to encourage and permit frequent and continuing contact between the child and another party
The present and past abuse committed by a party or member of a party’s house-hold, whether there is a continued risk of harm to the child and which party can better provide adequate physical safeguards and supervision
The parental duties performed by each party on behalf of the child
The need for stability and continuity in the child’s education, family life and community life
The availability of extended family
The child’s sibling relationships
The well-reasoned preference of the child
The attempts of a parent to turn the child against the other parent
Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs
Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child
The proximity of the residences of the parties
Each party’s availability to care for the child or ability to make appropriate child-care arrangements
The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.
The history of drug or alcohol abuse of a party or member of a party’s household
The mental and physical condition of a party or member of a party’s household
Any other relevant factor

Additionally, under the new law Judges must provide the reasons and facts they relied upon in reaching their decision. These changes should provide greater predictability and uniformity in custody disputes throughout the state.

Marriage and Divorce: Facebook style

Stark & Stark — Mon, 27 Sep 2010 08:04:24 -0500

John* recently filed for divorce from his wife of 10 years. They have 2 children together. He originally came to me concerned that he and his wife had become both emotionally and physically distant from one another. He complained his wife obsessed over her new Facebook account; constantly monitoring it through her mobile phone. John feared the worst. But every time he confronted his wife with his concerns, he was reassured that she was just talking to “old friends from school” or “co-workers.”

Turns out that John’s wife had reconnected through Facebook with an old high school boyfriend. They had been having an affair for almost a year.

And so John became the 1,011th spouse to file for divorce in Bucks County this year.

Some sources estimate Facebook plays a role in one out of every five divorces.

While that number seems high to me, as a divorce attorney I will unequivocally say Facebook, along with the gambit of internet dating sites, is boosting my business. Internet social networking is increasingly becoming a conduit through which affairs and intimate contacts are sparked, kindled and fanned.

According to Lynne Lee, a local counselor and therapist: “Sites like Facebook are contributing to separations and divorce as bored 40 and 50-somethings try to reconnect with childhood sweethearts.”

“Relationships develop more quickly online as inhibitions are lowered, information is easily exchanged, and there’s an endless amount of people you can link up with who are there for the same reason.” Lee says. “ Plus the real life pressures of a real relationship are absent...it tends to be a bit of a fantasy world.”

Everyone has some degree of fantasy about a love that might have been from the past. The new technology helps you find and reconnect with these people. It’s an easy escape from the “doldrums” of marriage when the sparks fade after years of raising children and the pressures of maintaining a home.

Lee, who counsels couples, encourages them to talk about how Facebook can hurt as well as help their relationship. She offers the following boundaries for spouses on Facebook:

Avoid “friending” exes
“Friend” each other and bring each other up from time to time on the site
Keep conversations with people of the opposite sex public on Facebook “walls”
Share user names and passwords with each other and encourage your spouse to login to your account so they can be assured there are no secrets
List yourself as “married” in your status (its kind of like a cyber wedding ring)
Never put down your spouse or bring up relationship problems on Facebook
When in doubt “defriend” Lee emphasizes this one. If you find yourself frequently looking at someone else’s profile or waiting for their next post - you need to walk away by “defriending” that person
Don’t spend more time online than with your spouse. Escaping into a cyber fantasy world and pursuing an exciting encounter is a poor excuse to avoid confronting real life issues in a real relationship, especially if children are involved

Social networking is here to stay. The sooner couples talk about it, the less harm it can do to a marriage. Setting up boundaries to protect your marriage, both in life and online, doesn’t mean you’re an untrusting, insecure or jealous person. It means you recognize that even people with the best of intentions can compromise themselves.

Spend some facetime with your spouse to make sure you are on the same page with Facebook.

*Names have been changed. Used with permission of the client.

How is property divided in a Pennsylvania Divorce?

Stark & Stark — Wed, 19 May 2010 08:08:33 -0500

In Pennsylvania, including Bucks County, marital property is subject to “equitable distribution.” Equitable distribution does not mean equal. Also, despite common belief, there is no presumption of a 50% - 50% distribution. The Court will consider the following factors in determining the distribution of the marital assets:

The length of the marriage.
Any prior marriage of either party.
The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
The contribution by one party to the education, training or increased earning power of the other party.
The opportunity of each party for future acquisitions of capital assets and income.
The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.
The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
The value of the property set apart to each party.
The standard of living of the parties established during the marriage.
The economic circumstances of each party, including Federal, State and local tax ramifications, at the time the division of property is to become effective.
Whether the party will be serving as the custodian of any dependent minor children.

Lastly, contrary to popular belief, fault is not a consideration in the division of the property. Thus it does not matter why the marriage ended (i.e. one party had an affair or abandoned the home.) Marital misconduct could, however, become relevant in equitable distribution if one spouse dissipated assets for the benefit of the third party (such as vacations, purchase of jewelry, ect.)

What is considered "marital property" in a Pennsylvania Divorce?

Stark & Stark — Wed, 05 May 2010 08:07:09 -0500

Pennsylvania Law starts with the presumption that all real or personal property acquired by either party during the marriage is marital property regardless of how it is titled. Marital property also includes the increase in value (during the course of the marriage) of any non-marital property.
The Court is thus more concerned with when the property was acquired rather than how the property is titled.

The presumption can be overcome if the property falls into one of the following statutory categories:

Property acquired prior to the marriage or property acquired in exchange for property acquired prior to the marriage;
Property excluded by valid agreement of the parties entered into before, during, or after the marriage;
Property acquired by gift, except between spouses; bequest; devise; or descent, or property acquired in exchange for such property;
Property acquired after final separation until the date of divorce except for property acquired in exchange for marital assets;
Property which a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value prior to the date of final separation;
Certain Veterans’ benefits;
Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the date of final separation;
Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

Property which is not marital property is often referred to as “separate property” or “nonmarital property.” The court only has authority to equitably divide marital property at the time of equitable distribution.

New Support Guidelines for Pennsylvania Child and Spousal Support

Stark & Stark — Wed, 14 Apr 2010 08:09:57 -0500

In January of this year the Pennsylvania Supreme Court issued updates to the Pennsylvania Support Rules and Guidelines. The guidelines are what our courts use to determine the amount of child support a parent must pay to the other parent or the amount of spousal support one spouse must pay to the other. The guidelines are required to be updated every four years. Usually there are only very minor changes. This year, however, there are some significant changes which will have a profound effect on the calculation of child or spousal support in certain cases.

For residents of Bucks County, as well as the rest of the state of Pennsylvania, The most significant change is in the application of the support guidelines to cases where the net household income is in excess of $20,000 per month. Currently the child support guidelines end when the combined net monthly income for the parties reaches $20,000. Above $20,000 net per month the parties are considered “off guidelines” and a much more complicated analysis would be performed to determine child support. The new guidelines now increase that threshold to $30,000 per month. This increase should provide some much needed uniformity in calculating support for parties who fall into this high income category. The new guidelines also chang the manner in which the court would determine a support obligation for parties with net income in excess of $30,000 per year. The change should result in a much more consistent and uniform child support awards in high income cases throughout the state.

The Supreme Court has also added language in the new guidelines to allow the trial court to consider the duration of the marriage when determining the duration of spousal support or alimony pendente lite (APL). This change was specifically implemented to prevent the unfairness that arises in a short-term marriage when the obligors are required to pay support over a substantially longer period of time than the parties were married and there is little or no opportunity for credit for these payments at the time of equitable distribution.

An additional change to the child support guidelines is the court’s presumption that the non-custodial parent (the parent paying the support) is spending at least 30% of the time with the child(ren). As such the non-custodial parent should also be making contributions for things such as food and entertainment. These payments are built into the new schedule. Under the new guidelines a deviation upward may be had where the non-custodial (paying) parent has substantial less than 30% time with the child. Conversely, a deviation downward may be had if the non-custodial parent has substantially more than 30% time with the child.

Lastly, under the current guidelines a spouse could be awarded an additional amount to assist in paying the mortgage on a marital residence. This amount could be ordered to continue being paid even after the parties obtain a divorce. The new guidelines now limit this “Mortgage Deviation Credit” and direct it cannot be applied after final resolution of the economic claims between the parties to a divorce.

The new guidelines go into effect May 12, 2010. Enactment of the new guidelines, in and of themselves, are not a grounds to change a current support order. If, however, a substantial difference exists in a support award calculated under the old and the new guidelines it is possible a court would grant such a modification. Parties who suspect their support award may be altered by the new guidelines should consult with a family law attorney to determine if it is worth their while to file for modification.

An Owner's Manual For Your Divorce - Installment 10

Stark & Stark — Mon, 05 Apr 2010 08:02:14 -0500

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The tenth and final installment will focus on moving on after your divorce. Mr. Visco discusses the fact that the Judgment of Divorce in and of itself is not going to improve your life. The divorce simply changes your legal status from being married to being single. What you do as a result of the change of status is now up to you.You can download a copy of the installment notes here. (PDF)

You can download the tenth installment here. (1.4 MB)

An Owner's Manual For Your Divorce - Installment 9

Stark & Stark — Tue, 30 Mar 2010 08:04:14 -0500

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The ninth installment will focus on the follow-up after your divorce. After you have entered into a Settlement Agreement or the Judge has made a decision, the terms of that Agreement or decision must be implemented. In this installment, Mr. Visco will will discuss issues pertaining to deeds and mortgages, how to change your name, life insurance policies, pension or retirement accounts, medical insurance and bank accounts. You can download a copy of the installment notes here. (PDF)

You can download the ninth installment here. (1.7 MB)

An Owner's Manual For Your Divorce - Installment 8

Stark & Stark — Thu, 25 Feb 2010 08:07:25 -0500

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The eighth installment will focus on the trial portion of your divorce. If you and your spouse have been unable to settle your case between yourselves and none of the settlement alternatives described in Section VII have been successful, it may be necessary to prepare and submit your case for trial before the Judge. In this installment, Mr. Visco will give an overview of the trial proceedings. You can download a copy of the installment notes here. (PDF)

You can download the eighth installment here. (2.3 MB)

An Owner's Manual For Your Divorce - Installment 7

Stark & Stark — Tue, 09 Feb 2010 08:05:03 -0500

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The seventh installment will focus on master's hearings, mediation and arbitration. Trials take a very long time to be scheduled, and are often times not completed in consecutive days and therefore usually require several days of testimony extended over several months. Trials are extremely expensive and almost always further polarize the parties. Family masters, mediations and arbitrations are a less expensive and time-saving alternative to traditional lengthy divorce litigation.You can download a copy of the installment notes here. (PDF)

You can download the seventh installment here. (2.3 MB)

An Owner's Manual For Your Divorce - Installment 6

Stark & Stark — Thu, 28 Jan 2010 08:29:55 -0500

Stark & Stark Attorney Discusses Collaborative Divorce on CNBC

Stark & Stark — Wed, 27 Jan 2010 09:57:46 -0500

Joseph D. Visco, member of Stark & Stark's Divorce Group, was quoted in the January 26, 2010 CNBC article Breaking Up Doesn't Have To Be Hard To Do - Bucks County Collaborative Law Group Takes the Toxicity Out of Divorce.

In the article, Mr. Visco, a founding member of The Bucks County Collaborative Law Group (BCCLG), discusses the many ways in which a collaborative divorce helps divorcing couples turn conflict into cooperation and assists divorcing couples in resolving disputes respectfully and equitably without going to court.

You can read the full article online here.

Collaborative Divorce - What's all the Buzz about??

Stark & Stark — Mon, 26 Oct 2009 08:55:04 -0500

A lot of attention and publicity is being generated around a new approach to divorce - the Collaborative Divorce. So what it is it, how is it different from “regular” divorces, and, most importantly, is it really better?

First of all, Collaborative Divorce is both an approach to, and a process for, Divorce. Each party retains their own lawyer who, as in traditional divorce cases, advocate on their client’s behalf. The attorneys aide in focusing the dispute to the legal issues and reaching a result consistent with what the parties would have obtained had they proceeded to court - except the Collaborative Process can do in weeks what it takes the court months to accomplish. There are no formal filings thus no unnecessary legal fees, no waiting for court dates and no down time waiting in court for your case to be called. This translates into less waste and minimizes billable hours and court costs.

The Collaborative process typically involves numerous meetings with both the parties and the attorneys present. These “four way” meetings allow the parties to prioritize the issues - addressing the most urgent, such as support, custody, the sale of a house or assets - before moving on to issues that can wait, such as dividing retirement accounts or having assets appraised. Four ways rarely happens in a typical litigated divorce, and if they do it usually only happens at the very end of the litigation when the parties are desperately trying to settle the case the day before trial. Choosing the Collaborative process frees the parties from being bogged down with court procedure, overburdened court calendars and layers of bureaucracy. Generally most Collaborative cases dispense with the need for the parties to ever even step foot in a courtroom.

At the first meeting the parties and their lawyers enter into a “Participation Agreement” that sets forth the commitments in the Collaborative Divorce including the agreement that all issues will be settled prior to a divorce complaint ever being filed. Once both parties have retained their Collaborative attorneys the lawyers then set the agenda for the series of four ways. The lawyers will commit to managing the conflict, developing the legal issues and controlling the emotional issues. Each party’s attorney is an advocate for that party. Collaborative attorney are not mediators. They advocate for their clients but with the goal of obtaining a result comparable to what a court would award.

Often times it is necessary to reach out to a detached and neutral expert - such as a custody evaluator, business appraiser, certified divorce planner, or financial or tax expert to resolve certain disputes or evaluate assets or develop a plan to preserve as much of the estate as possible. This is comparable to the use of experts in traditional divorce without the costs associated to have them testify at trial.

Ultimately, the goal is to prepare a formal legally binding agreement signed by the parties which resolves all issues related to property distribution, support, child custody and other issues pertaining to the divorce. The collaborative process is successful in obtaining such an agreement in about 97% of the cases. In the 3% where a settlement is not reached - the collaborative attorneys must terminate their representation of the parties.

What are the benefits?

Cost - Attorneys fees are generally half of what a typical litigated divorce may cost you. Why? There will be no formal pleadings drafted, no waiting in court, no government bureaucracy to navigate. The four way meetings save everyone time while the attorneys focus the parties on the legal issues which need to be resolved.
Time - Skilled collaborative attorneys can resolve in one session what it may take a court months to resolve.
Outcome - Your voice is heard. The parties control the outcome - not a judge who may only hear a days worth of facts.
Privacy - With no public documents being filed the whole divorce, and the private facts underlying the divorce, remain private. No prying eyes. No embarrassing details.
Satisfaction - Parties who have undergone the collaborative process report a greater feeling satisfaction in the end result and greater participation in the process.
Dignity - The collaborative process has proven to minimize hostility and allow the parties to “turn the page” on a new chapter in their life while promoting healthy communication between the parties - an invaluable benefit if children are involved.

The attraction to the Collaborative Process is not just for the parties who are struggling financially and want to save on legal fees - the benefits apply to all size divorces. Madonna and Guy Ritchie recently committed to the Collaborative process and successfully (and quickly and quietly) obtained their divorce.

To begin the Collaborative process you need to meet with a Collaborative Attorney. The attorney should be a member of an accredited organization - such as the International Academy of Collaborative Professionals. You should then look for an attorney who is a member of a Collaborative practice group in the county where the divorce would likely be finalized. As with the selection of any attorney - do your homework. Review the attorney’s credentials. Make sure you select an attorney who concentrates their practice in the areas of Divorce and Family law. The selection of your attorney may be the single most important decision in your divorce.

An Owner's Manual For Your Divorce - Installment 5

Stark & Stark — Tue, 29 Sep 2009 08:08:33 -0500

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The fifth installment will focus on pretrial motions and applications. The podcast will address the importance of pretrial proceedings and the most common types of pretrial motions which include: temporary child support, alimony arrangements, custody arrangements, allocation of bills and expenses, counsel fees or litigation expenses and insurance coverage. You can download a copy of the installment notes here. (PDF)

You can download the fifth installment here. (2 MB)

An Owner's Manual For Your Divorce - Installment 4

Stark & Stark — Mon, 24 Aug 2009 08:05:26 -0500

The fourth installment will focus on whether to use fault or no fault grounds when filing for your divorce. The podcast will discuss the legal implications of filing for a fault or not fault divorce, and how Pennsylvania state law will impact the decision you make. You can download a copy of the installment notes here. (PDF)

You can download the fourth installment here. (2 MB)

Jon vs Kate: Custody, Cops & Kids

Stark & Stark — Tue, 18 Aug 2009 09:09:42 -0500

On Thursday night, August 13, 2009, Lower Heidelberg Township Police were dispatched to the Gosselin residence in Wernersville, Pennsylvania.

As we all are aware, Jon & Kate have a custody arrangement wherein Jon spends a week with the children at the Wernersville home and then Kate spend a week with the children. The agreement provides that each parent will have exclusive possession of the home - in other words the other party is not permitted to be there or interfere with that parent’s custody time.

Apparently Kate did not abide by the agreement. Last Thursday night she returned, unannounced, to the parties home during Jon’s week with the kids. Jon would not let her in. Kate called the cops. The cops arrived and told Kate to leave. Kate complied. The end.

For now.

So why did Kate show up at the house in the first place? Allegedly Kate was upset over Jon’s babysitter - 23-year-old cocktail waitress Stephanie Santoro. It has previously been reported that Ms. Santoro often spends the night at the house for reasons other than watching the children.

Jealousy, no mater how understandable it may be, is no reason for Kate to get the police involved. However, giving Kate the benefit of the doubt, it is possible she believed her children were not being cared for appropriately by Ms. Santoro.

Regardless of the reason, unless the kids were in physical danger or there was an emergency situation, Kate was out of line. Kate must respect Jon’s “exclusive” time with the children and stay away. Furthermore, calling the police for a routine custody dispute (although I imagine it escalated into Kate and Ms. Santoro exchanging choice words with one another) is never a smart decision.

But it happens all the time.

Parents routinely call the police when they believe the other parent is violating a custody order/agreement. If the order is clear as to which parent has custody of the children at that moment, then the police may assist in transferring the kids to that parent. Absent that, the police are generally powerless to do anything (except as previously noted) and, as in the Gosselin’s case, usually just inform the parties their dispute is a “civil matter” and they need to deal with it in family court. Further, judges do not look kindly on a party who involves the police for simple custody matters. Most judges are quick to berate a parent in open court for using the police in that manner. I’ve heard the courtroom lecture from Judge’s countless times: “Don’t you think the police have more important things to do then deal with your personal problems?!” (Always directed at my adversary’s client of course).

If you read my previous blogs, you know the Gosselins have not filed for custody (see Jon minus Kate: What about the 8?). If Kate is going to make an issue regarding Ms. Santoro’s continued care over the children or presence at the house then Jon & Kate may be headed to Berks County for a very public custody battle.

Perhaps Jon & Kate could learn a thing or two from Madonna - a private, comprehensive, collaborative resolution seems ideal for their situation.

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces. I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

Does shared custody mean equal time with the kids in a Pennsylvania Divorce?

Stark & Stark — Mon, 17 Aug 2009 08:04:40 -0500

According to Pennsylvania Law, shared custody is an order awarding legal and/or physical custody of a child to the parents in such a way as to assure frequent and continuing contact between both parents and the child.

In making a custody decision, the court does not presume that either parent is naturally a better parent. Instead, the court looks at all circumstances and decides on a particular arrangement that would be best for the child.

In shared physical custody, a child’s time is divided between each parent’s home. The split is by a schedule that works best for the child. This could be a 50/50 split however circumstances may exist which make it impossible to have a 50/50 split between mom and dad. There are variations in shared physical custody schedules. For example:

In a situation where there is great distance between where the parents reside, it may best for the child to spend the school year with one parent, and summer vacation with another;
When the parents reside in different school districts, it may be best for the child to spend weekdays with one parent, and weekends with the other parent;
When the parents reside in the same school district, it may be best for the child to spend one week with one parent, then the following week with the other parent and continue that rotation;
If a child is of pre-school age, the parents may alternate with a 2 day, 3 day, 2 day schedule.

The above schedules can be successful if both parents work well together for the benefit of the child. A schedule will also have to be developed that provides for holidays and special occasions. Parents need to be flexible as the child grows older and work together when the schedule needs to be modified.

Sometimes shared physical custody pursuant to a schedule, such as one of those described above, is just not practical and not in the child’s best interests. Examples of those situations are:

If the child is an infant and breast feeding;
When one parent works nights;
If the parents are in different school districts and because of distance a shared physical custody schedule cannot be accommodated.

Every child has different needs. Every situation is different. Every child custody order must be crafted to reflect the unique needs and circumstances of the families.