VICTIMS AND CONFIDENTIALITY
There clearly is a need for some victims of domestic violence to keep their current whereabouts confidential. Some abusers do not have any respect or concern about Court Orders when their emotional or financial interests are concerned. Confidentiality is an essential component of many victims' plans for safety and security...
There are several mechanisms for parents who have custody of their children to obtain some child support in Pennsylvania when the other parent is not voluntarily providing it. The most obvious is, of course, to file at the local Domestic Relations Office (DRO)...
THIRD PARTY CUSTODY RIGHTS
There are several groups of people, other than parents who have an abiding interest and concern for children that have sought custodial time with the children. These include Grandparents, Step-parents, Aunts, Uncles, and siblings. The Pennsylvania Courts have acknowledged the rights of persons who have acted in loco parentis...
IT IS A WISE CHILD THAT KNOWS WHO HIS FATHER IS
It may be one of the oldest and strongest presumptions in the Law, but it seems to be time for the Courts to wake up to the reality of modern living and the complicated interpersonal relationships we weave. There were, no doubt, good social reasons why, in the past, the Courts were protective of the apparent “legitimacy” of children...
VICTIMS AND CONFIDENTIALITY
There clearly is a need for some victims of domestic violence to keep their current whereabouts confidential. Some abusers do not have any respect or concern about Court Orders when their emotional or financial interests are concerned. Confidentiality is an essential component of many victims' plans for safety and security. However, there are practical consequences that have an impact on the right of the opposing party to have safe and appropriate contact with the children of the parties or the need to be able to deliver legal papers to the victim in order to disentangle the parties from such things as titles to vehicles, divorce proceedings, and custody arrangements for the children.
Although a history of violence is a necessary factor to consider in the contact between an abuser and children, not all abusers should be supervised or denied contact with his/her children. The difficulty comes in trying to protect the victims without making it impossible for the other parent to present a custody request to the Court, or to proceed in filing and finalizing a divorce if the parties were married. When the address is withheld, there currently is no mechanism in place to assure the victim can receive the legal pleadings and still protect her/his whereabouts. To some extent, it may actually be of benefit to the victim to either end the legal relationship created by the marriage, or the victim may believe that it is in the best interests of the children that they see their other parent on a regular basis. However, with no idea of where the party is and no ability to provide them with the documents necessary to resolve outstanding issues between them, the interests of the children and of the Court in seeing that economic justice is done in the division of their property, as required in the Divorce Code, cannot be accomplished. I have advocated for some time that there needs to be some way to be able to serve the party with the confidential address, as that term is used in the legal sense*, with the legal documents without compromising their safety and security. I have suggested that the Court establish an office, or give the responsibility to an existing office, to be the authorized recipient of such pleadings on behalf of the person whose address is confidential. It would be the responsibility of that person to keep the office aware of any changes to their actual address, and the pleadings would then be forwarded to the individual by the Court official. In this electronic age, it could be at an email address, however, certainly, not everyone can afford or desires to be on-line.
The Court would have to enter an Order that establishes the recipient as the authorized agent for the purposes of accepting service from the spouse/parent on behalf of the individual. Of course, there will be situations where, through no fault of their own, documents do not make it to the intended recipient. No system is foolproof. I believe that the authority should only be for a specific period of time, forcing any legal proceedings to be activated on a timely basis. Additionally, the Court would not want to be the agent for service for extended periods of time. However, with some thought and care procedures and safeguards in place, it would permit the resolution of these matters to proceed to a conclusion, allowing each side to present their positions and arguments in a forum where the safety of all concerned is respected and protected.
There are several mechanisms for parents who have custody of their children to obtain some child support in Pennsylvania when the other parent is not voluntarily providing it. The most obvious is, of course, to file at the local Domestic Relations Office (DRO). If there is a Protection From Abuse petition filed, a request for an Order for temporary support can be presented, as well, in that action, but there is a requirement to file at DRO within ten (10) days of the entrance of the temporary order. The temporary amount will continue until DRO determines the appropriate amount. DRO is required to apply the Supreme Court’s guideline figures if the parents are unable to arrive at a figure they can both agree is appropriate. Those guidelines, required by Federal Law, are reviewed and changed every four (4) years and, on May 12, 2010, new guidelines were implemented. There have some important changes in the guidelines including the changing of the amounts of support required based on incomes. Essentially, the guidelines are a chart that puts the combination of both parents’ net incomes on the left side of the chart and the various amounts of money (Basic Support Obligation - BSO) deemed necessary to be contributed by both parents based on the number of children as columns beside the income ranges. Then the non-custodial parent’s obligation is a result of multiplying the amount for support on the chart indicated for the number of children and the joint net incomes by the percentage the non-custodial parent’s income is of the total joint net income.
So, if a parent earns sixty percent (60%) of the joint net income, then that parent is expected to contribute 60% of the BSO. That parent will also pay that same percentage of any medical costs for each child after insurance has paid its’ share. The custodial parent is required to pay the first $250.00 in each calendar year for each child before the non-custodian has to begin to contribute toward the medical expenses of that child. There are additional factors that impact the final amount to be paid for each pay period. If there are daycare costs, the non-custodian will pay the same percentage as determined above for those costs. This will be added to the support award. There is a limit, normally 50% of net income, that can be taken from the non-custodial's paycheck. There also is a consideration for the noncustodial parent who has more than the expected amount of overnights (must be at least 146 in a year) applied as a discount of the basic support award and if there are additional children either living with the non-custodial parent (that are the children of that parent) that can impact the amount of support. One thing that many people do not factor in when trying to figure out in advance what the amount should be is that deductions to United Ways, 401(k)s, or other voluntary contributions and deductions from pay are not considered. Also, many of us have more Federal taxes deducted from each pay. I think many people see that refund as a vacation savings account. Not that banks give any real interest these days on savings accounts, but you are really giving the Federal government an interest-free loan when you do that. The DRO computers have built-in them the Federal directions to employers, called Circular E, about how much to deduct from each payment that is supposed to come out with no tax owed or to be refunded at the end of the year. Of course, it always seems better to get even a small refund than having to pay the IRS. However, support numbers are figured as if the proper amount is withheld based on the filing status (married, single, head of household) and the number of deductions. I have been practicing law for over forty-eight (48) years. Seldom do I find anyone happy about the amount of support that is awarded. The people who have to pay to say it is too much and doesn’t leave enough to live on, and the ones who collect it think it woefully too little. Maybe that means it is correct. Of course, each parent has a responsibility to help support their children, and it is the rare parent who does not understand this or disagrees. However, the various complications of life and the need for additional funds strike all but a few of us on an almost daily basis.
That’s why I recommend to my clients on both sides of the custody issue to have the amount, even if it is agreed upon, to be entered as a Court Order through DRO. It provides accounting and proof of payment, and it ensures, through a payroll deduction, that payments will be regular and consistent. The tires on the car in order to get to work are still purchased if the money is taken directly and the payor learns to live on the payment after the support is taken out. While employed and having the money taken out, the payor is relieved of the threat of imprisonment for failure to pay, and the payor doesn’t have to do anything like remembering to send a check or drop off money. Another issue that comes up often is the request that the non-custodial give up rights to the child and thus be relieved of support obligations. This doesn’t happen! The only way one parent can be completely relieved of a legal obligation for their children is if the children are adopted by other people or a step-parent adopts while married to the other parent. Finally, the other common issue is when one parent questions whether or not the person designated as the father is truly the father, in other words, paternity. If an appropriate document is signed at the birth of the child that clearly states that the signor understands that by signing he is acknowledging paternity, and no fraud is committed to induce that signature, it will be too late to do anything about it. The Courts used to strictly adhere to the doctrine that every child born while the mother is married is the child of the husband. That was in the days when being illegitimate carried with it a terrible stigma.
However, the Courts have somewhat caught up with societal changes and have allowed husbands to challenge paternity in certain instances and allowed the introduction of DNA testing to determine paternity. Despite what you might think about the OJ trial, DNA is recognized by the courts as being real and statistically accurate.
THIRD PARTY CUSTODY RIGHTS
There are several groups of people, other than parents who have an abiding interest and concern for children that have sought custodial time with the children. These include Grandparents, Step-parents, Aunts, Uncles, and siblings. The Pennsylvania Courts have acknowledged the rights of persons who have acted in loco parentis, or who have acted in place of a parent, as many step-parents have, the right to have contact, even primary physical custody of the child or children, whether or not they are related by blood or marriage to the children. However, although the Supreme Court of Pennsylvania has stated that there is no presumption of a preference for the parents of the child, as there can be no presumptions in custody cases since the standard is always what is in the “best interests” of the child, third parties have an increased burden when opposed to actual biological parents. The rights of step-parents have been recognized in Pennsylvania since 1977.
Pennsylvania statutes have specific provisions for grandparents. Their rights to contact with a child survive a step-parent adoption. They also have partial custody rights if the child lived with them for at least twelve (12) months, the grandparent’s child is deceased, or the child’s parents are separated. However, there is case law concerning the provision of those statutes that requires that such partial custody does not adversely affect the child/parent relationship. One of our attorneys, Richard A. Katz, represented a parent in one of the few Appellate Court cases on this issue that is reported in Pennsylvania.
Grandparents also have rights to custody, even primary custody, if there is a danger of neglect or abuse due to drug or alcohol use by the parents and the grandparents have had a continuing involvement with the child. Again, there is no presumption in favor of the parents, but there is an increased burden on the grandparent seeking custody. The United Supreme Court struck down a Washington State statute that provided for grandparents' rights as vague and overbroad. However, most analysts view the specifics in the Pennsylvania Statues as meeting the test of the Supreme Court. Unfortunately, the Pa. Supreme Court has ruled on several occasions that siblings, aunts, and uncles who have not acted in the place of a parent have no right to file for contact with the minor children. There simply is no statute that confers any rights to them, nor does the case law support any inherent right. This can be especially troubling when one of the parents is deceased, and the older siblings feel it best to intervene. Of course, the local child welfare agency, or Children and Youth Agency, should be notified to investigate any neglect or abuse of a child, no matter whether there is only one parent or two. The siblings or other close relatives, if it is established that there has been neglect or abuse that fits the Agency’s definition, can request that the children be placed with them (kinship care). The Agency, however, must agree or the children will be placed in foster care. Also, in 1977, the Superior Court of Pennsylvania issued a decision granting, for the first time in Pennsylvania, a step-parent the right, in certain circumstances, the right to contact with his step-children.
There the issue rested upon the assessment of the step-parent acting in loco parentis. Attorney Katz was involved with that case, as well. As our society has become more and more fragmented, and isolated, there seem to be fewer opportunities for children to be taken care of by relatives in the area, or who have established a close relationship. We do not see many communities where everyone knows everyone else, and if the kids did something wrong, by the time they got home, someone else’s mother or father has called the child’s parent and they are in trouble as soon as they walk in the door. It may take a village, but there seem to be fewer and fewer villages. If you feel that you should intervene in a child’s custody, it is best to consult with a lawyer familiar with these issues before asserting a position with the current custodian. If you would have no right to intervene, being able to stay close and have whatever contact you can is better than alienating the custodian to the point where you are unable to monitor what is going on. Children need as many people as possible that they feel love them and in whom the can confide.
IT IS A WISE CHILD THAT KNOWS WHO HIS FATHER IS
It may be one of the oldest and strongest presumptions in the Law, but it seems to be time for the Courts to wake up to the reality of modern living and the complicated interpersonal relationships we weave. There were, no doubt, good social reasons why, in the past, the Courts were protective of the apparent “legitimacy” of children. Being known as, and being called, a bastard had a much more devastating impact on a child than it would today. Now it is more of a general insult rather than a direct expression of a person’s parentage. However, it is becoming less and less accurate that all children born within the dates of a marriage, even while the spouses reside together, are the children of the husband. As more and more children are born to unmarried mothers, and to families whose living arrangements are more fluid than remaining living with the father of the children, it is becoming increasingly more important to acknowledge the biological ties than to turn a blind eye in favor of a legal fiction.
I came to an understanding of the real meaning of the phrase that is the title of this article when my youngest, now in his mid-thirties, was around twelve and I told him to do something. He challenged me with a response that asked why he should do so. My response was the ultimate parental answer, “Because I said so, and I am your father”. His quick response was, “That’s just what Mom tells you”. Suddenly, the phrase came to mind and I appreciated the full meaning. There are witnesses, usually, to the birth, so we know who the mother is, but, hopefully, no witnesses to the conception and continued exclusive sexual conduct to eliminate any possibility that someone other than the purported father is the biological parent.
Of course, it is important to not have the government, through the Courts, intrude into the family relationships and to impose something on a family that is functioning well and is intact. However, where all parties acknowledge the possibility/probability of someone other than the husband being the biological parent, there are good reasons to have that knowledge known and the resultant rights and responsibilities attend. Even where one or two of the parties is/are not in agreement, it can be very important to permit DNA testing to determine the biological parentage. If the spouses’ marriage is a matter of abuse and neglect, has a history of being “intact” with periods of volatility and separation, then the Courts should be permitted to “pierce the marriage contract veil” and permit the testing. As it stands now, the living together of the spouses is tantamount to completely precluding the alleged parent from asserting his rights.
The knowledge could have a devastating impact on a family that believes, or at least the husband believes, that the child or children are biologically the husbands. This is particularly true where the husband has developed over time a loving and bonded relationship with the child or children. We all need as many people as we can gather that actually love us and care about us, regardless of their biological connection to us, or lack thereof. As a loving stepfather, I believe that should not be compromised! However, there are several good reasons why the Commonwealth has an interest in getting to the reality of the situation.
The most obvious, of course, is the issue of genetically transmitted diseases and disorders. A child, and its parents, should be aware of all of the possible issues that may arise in childhood or adulthood. A proclivity or sensitivity to alcohol poisoning is one such issue, but there are disorders, susceptibility to certain diseases, or physical difficulties that can be passed through DNA to the child or to the child’s prodigy that may need to be monitored throughout the child’s life that should be known. Knowing the medical history of the birth parents can be instrumental in anticipating difficulties and resultant quick action can literally save lives. The Commonwealth has already acknowledged this as such an important issue that upon the conclusion of an adoption notice is required to be sent to the biological parent whose rights have been terminated to inform them that they may deposit such medical information with a registry of the State’s that can be made available to the adopted child. There is no reason why such should not be available for the children of all parents of whom the child may have little to no knowledge or ability to contact.
There have been inroads into this presumption, but they all require a non-intact family unit in the mother’s living situation. Given that Court civil records are available in most counties on-line, the use of initials in the captions of cases brought to establish the parentage should help to protect from prying eyes, particularly where it turns out that the father is the husband. A recent case has come down from the Pennsylvania Supreme Court regarding the obligations of a step-parent who has acted in the place of a parent, in loco parentis. In that case, the Court ruled that such step-parents can be required to pay support for the child or children. In the mid-1970's the Superior Court set precedent in permitting step-parents in such positions to have regular and Court-ordered contact with their stepchildren. The Court, by inference, is taking steps to reflect the reality of modern living and that the traditional mother-wife/father-husband model is not as commonly found as before and that responsibilities go along with rights. Here the Court would be acknowledging the responsibilities of the person who actually has an obligation to assist in the support of a child he helped to produce. All of this article has focused on the child and the family’s rights to not have intrusions into it that may cause it to dissolve. However, the biological father’s rights must also be a factor in the consideration of this issue. I have encountered fathers who, contrary to the stereotype, want to step up, meet their responsibilities, and have a life-long and bonded relationship with the child or children he has helped bring into this world. To ignore or dismiss his rights and feelings, as well as depriving the child of such a relationship, is not a recognition of reality, and abrogating his rights as a father.
There has been an effective movement regarding father’s rights, and the Courts have been taking a more active role in protecting those rights, as well as enforcing the obligations that attend to the birth of a child. In custody cases, the Courts have been very clear that the over-riding consideration is the best interests and welfare of any child involved. This presumption ignores this vital aspect. I realize that it is assumed that the continuation of a loving and supportive relationship is a factor in such best interests, and a balancing of all of the competing for the interests may be necessary. However, an irrebuttable presumption does not permit such an analysis. Not only from a medical standpoint but from psychological and emotional aspects, it may very well be in the child’s best interests to know its exact parentage. For it is truly a wise child who knows who his/her father is.