Harold J. Funt

The Who, What, Where, Why & When of Family Law Court

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PART I – INTRODUCTION TO FAMILY LAW COURT

So you find yourself in the unfortunate position of needing help with some sort of family law matter. Maybe your spouse’s conduct has you questioning the future of your marriage. Perhaps your former spouse has stopped making voluntary child support payments. Maybe your estranged spouse is now arguing with you about child custody arrangements. Your spouse has just locked you out of your house and has also withdrawn all the monies from your joint savings account. These are just some of the many reasons people seek the advice of MFDD’s experienced family law attorneys.

MFDD family law attorneys generally advise our clients to attempt to resolve disputes outside of court if at all possible. That course of action keeps the decision making process in the hands of the parties themselves with the assistance of counsel. However, if the parties cannot reach a voluntary agreement, the only alternative is to have a decision imposed by a person who has the legal authority to do so. What MFDD’s experienced family law attorneys do in such situations is to steer our clients to the right court and the appropriate person who can issue a Court Order that mandates a resolution to the particular family law dispute.

Many, if not most, of MFDD’s family law clients have very little or no experience with lawyers or the family court system. In fact, it really is surprising how little people know about our “real” legal system, which rarely is portrayed accurately on television or in the movies. What people think they know is not what they are likely to discover when they appear in court in any matter, and particularly family law matters. The purpose of this series we’re calling “The Who, What, Where, Why, and When of Family Law Court” is educational; to provide a window through which you see a true picture of the “real” family law court system. We warn you that the picture we paint might not be a totally warm and fuzzy one, but it is one you need to see before making a decision to enter the Courthouse.

You will better understand the reasons why MFDD family lawyers typically advise our clients to stay out of court if at all possible after you read this series of articles. Of course, it is sometimes impossible to avoid going “to court” in family law matters, when emotions are running high and logic often takes a backseat. If both parties can keep their emotions in check, it is possible to obtain a divorce, divide marital property, and even obtain child custody and support orders, without stepping foot into a courtroom.

If you are faced with a family law problem, MFDD family law attorneys can help. MFDD family law attorneys have helped hundreds of clients with divorce, custody, child support, and alimony-related matters throughout Pennsylvania and particularly in the Lehigh Valley. To have some peace of mind, consult with an MFDD family law attorney before making any decision you may live to regret.

We hope you return soon to our website to learn about “The Who, What, Where, Why, and When of Family Law Court, Part II – I’m in Court, But Where is the Judge?”

Shareholders Attend Miracle League Event

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Shareholders Barry Mosebach, Bill Dayton, and Kristie Beitler attended the Miracle League of the Lehigh Valley Cocktail Party on Thursday, September 11, 2014. Mosebach, Funt, Dayton & Duckworth, P.C. is a long-time supporter of the Miracle League, which provides children and young adults with special needs the opportunity to participate in Miracle League Baseball on their own entirely accessible field.

Harold J. Funt

The Expanding Rights of Grandparents

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THE EXPANDING CHILD CUSTODY RIGHTS OF GRANDPARENTS IN PENNSYLVANIA

Who in Pennsylvania Can Ask for Custody of a Child?

In Pennsylvania, a parent of a child who is under 18 years old has a right to petition the court for any available forms of physical and/or legal custody of that child.  So too can any person who has assumed the role of a parent and performed parental duties for a child.  Physical custody is defined by the Pennsylvania Child Custody Statute as the actual physical possession and control of a child.  Legal custody is the right to make  major decisions – like medical, educational, and religious decisions – for a child.  In the last few years, Pennsylvania law has expanded the rights of grandparents who have not assumed a parenting role and performed parental duties to seek all forms of physical and legal custody of their grandchildren in certain situations.

Assuming The Role Of A Parent

This assumption of a parenting role must be with the consent of one or both of the parents.  At least one parent of the child must have asked  third parties – such as an aunt, or close friend, or grandparents – to have the child live with them and to take care of that child in order for the third party to assume a parenting role that gives them the right to ask the court for all forms of physical or legal custody of that child.

Performing Parental Duties

The performance of parental duties for a child is shown by providing financial assistance to the child, provided shelter, food, and clothing for the child and generally caring for the child in the absence of the parents.  Persons who assume a parenting role and provide parental duties to a child are said to be “in loco parentis” to the child.  Pennsylvania law permits a person who is “in loco parentis” to a child to seek all forms of physical and/or legal custody of that child.  Pennsylvania law considers such persons to have voluntarily placed themselves in a situation where they are acting as parents to the child without having formally adopted the child.

Expanded Rights of Grandparents to Obtain Custody of Grandchildren

What is relatively new to Pennsylvania child custody law is the concept that grandparents who have not assumed a parenting role or performed parental duties for a grandchild (who are not “in loco parentis” to a grandchild under Pennsylvania law) are now permitted to petition for all forms physical and legal custody of their grandchild in specific situations.  One situation is when the court has declared the grandchild to be a dependent child in a juvenile proceeding brought by a county children and youth agency.  A second situation is when the grandchild is at risk due to parental abuse, neglect, drug or alcohol use, or incapacity.  A third situation exists when a grandchild has resided with grandparents for a period of at least 12 consecutive months and is then removed from that home by the parents. This expansion of grandparent rights clearly is a reaction to the growing number of children in our society who are suffering from having absolutely no responsible parenting.

More Child Custody Rights of Grandparents (and Even Great-Grandparents)

Grandparents and great-grandparents in certain other situations also have a right to petition a court for partial physical custody of a grandchild or great-grandchild.  The Pennsylvania Child Custody Statute defines “partial physical custody” as the right to assume physical custody of a child for less than a majority of the time.  When the parent of the grandchild or great-grandchild has died; where the parents have been separated for a period of at least six months or have filed for divorce; or when a grandchild or great-grandchild has lived with a grandparent or great-grandparent for at least a period of 12 consecutive months and is then removed from the home by the parent – grandparents or great-grandparents, as the case may be, have the right to ask a court to allow them to have partial physical custody of their grandchild or great-grandchild.

Contact MFDD

MFDD’s experienced family law attorneys have settled and liquidated child custody cases in the Lehigh Valley and throughout Pennsylvania for the last 30 years.  MFDD has assisted grandparents to gain legal and physical custody of their grandchildren when those children are in despair and in desperate need of a stable and loving home. In all child custody cases judges are required to reach their decisions based upon what is in the child’s best interests. MFDD offers very affordable comprehensive initial consultations to address child custody and all other family law questions. These consultations allow you to gain an understanding of all your legal options before taking any steps you will regret. We look forward to hearing from you!

MFDD Sponsors 1st Annual NHSLV “Opening Doors” Gala

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Mosebach, Funt, Dayton & Duckworth, P.C. was one of the sponsors for the 1st Annual NHSLV “Opening Doors Gala” featuring Fiddler on the Roof on June 22, 2014.  Bill Dayton, a shareholder of MFDD who has provided legal services to Neighborhood Housing Services of the Lehigh Valley, Inc. for nearly 15 years, attended the event.  Teresa Barron, an MFDD staff member in our Allentown location, was also in attendance.   NHSLV provides low-to-moderate income families in the community with assistance in purchasing their first homes through various lending, counseling, and educational programs.  MFDD is a full service law firm ready and willing to address your legal needs.

MFDD Participates in Equi-librium, Inc. Charity Golf Outing

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Bill Dayton and Tim Duckworth, both shareholders of the Lehigh Valley law firm Mosebach, Funt, Dayton & Duckworth, P.C., with offices in both Bethlehem and Allentown, participated in the Annual Equi-librium Golf Classic at White Tail Golf Club on June 4th, 2014, with guests Matthew B. Searles and Jack McGorry.  MFDD takes pride in once again participating in and supporting this event.

Tim Duckworth, Jr. Serves on Board of Directors of Bethlehem Catholic High School

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Tim Duckworth, Jr. was recently named to the Board of Directors of Bethlehem Catholic High School.

The Board was instituted to help navigate the school’s success, as implemented by an initiative of the Diocese of Allentown in partnership with the Healey Education Foundation through its signature initiative, the Catholic School Development Program, a non profit organization involved with sustaining and growing Catholic schools.

With a focus on strengthening Bethlehem Catholic’s position in the community, creating sustained growth, overcoming challenges, and developing tomorrow’s leaders, the Board began meeting in November and intends to offer “ongoing communication on its progress, including quarterly updates and annual ‘state of the school’ style meetings”.

A 2002 graduate of Bethlehem Catholic High School, Tim is proud to serve on the Board, with members being selected based on their talent, acumen, and strong moral character.

Harold J. Funt

Pennsylvania Child Support

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DUTY OF CHILD SUPPORT

Pennsylvania law typically requires the parents of a son or daughter to provide support to their child at least until he or she is 18 years old and graduates from high school.  The law presumes that parents living together are financially supporting their children.  But what happens when the parents are separated and living at different addresses, or are divorced?

Parents who live separate and apart or who are divorced still owe a duty to financially support their children as best they can, given their earnings history and capacity.  Often the parent who has physical custody of the children for most of the time will need to obtain help getting financial assistance for the children from the other parent.  How much financial support does the other parent owe?

Amount of Child Support

For most separated or divorced parents of children, Pennsylvania has established support guidelines for our courts to follow when determining how much child support a parent owes.  The amount of child support owed is based on the parents’ respective earnings or earning capacities and also the number of children who require financial support.  An earning capacity for a parent must be established if that parent is not earning as much as he or she is able to given his or her educational training, employment history, and earnings history.  Parents with combined monthly net incomes in excess of $30,000.00 per month present what are called “high income cases” and a particular analysis must be applied to these cases to calculate the parties’ respective child support obligations.

When both parties are salaried employees who receive W-2s for their tax returns – and who have no other sources of income – the calculation for determining the appropriate amount of child support is fairly uncomplicated.  But that situation changes once someone owns or derives income from a business.  In those cases, the business expenses can often be income for child support purposes.  For example, expenses for automobiles, cellular phones, or meals charged to the business, often become hidden income for Pennsylvania child support law purposes when those expenses are used for non-business purposes.

Additional Child Support Obligations

A parent owes more than just a monthly amount of income for child support.  There are also parental obligations for the costs of a minor child’s health insurance, extracurricular activities, private or parochial school tuition, unreimbursed medical, orthodontia, or psychological expenses.  A child support order will include directions for paying these types of expenses in addition to the monthly amount of basic child support.

How MFDD’s Experienced Family Law Team Can Help You With Child Support Issues

MFDD’s experienced family  law attorneys have the knowledge, skill, and technical support to calculate what income is available for child support.  We calculate either the actual earnings or earning capacities of both parents and determine respective net monthly incomes.  We then utilize a computer software program which mirrors the program used by Domestic Relations Sections throughout Pennsylvania to determine parental child support orders based upon the Pennsylvania Support Guidelines.  Of course, the more income available for child support, the higher the Support Guidelines for child support.

MFDD’s family law attorneys have many years of experience in helping clients who are seeking child support, or those being asked to provide child support, either as part of the divorce process or not.  We regularly represent parents at child support conferences and hearings which lead to the Court entering a child support order.  One major advantage of a child support order is that it permits wages to be garnished to pay for the child support obligation.  We also assist many MFDD clients in achieving a child support agreement so that neither parent has to appear in court.

We cannot address every child support issue in this article, but our experienced family law attorneys thoroughly address all child support issues of our clients.

Child Support / Spousal Support / Alimony / Divorce

Child support may be just one issue that needs to be addressed at the time of divorce.  The amount owed for child support can vary given the parents’ child custody arrangements.  The issues of spousal support, or APL before divorce and alimony after divorce, are other family law issues which we will address in a future article on this site.

Contact MFDD

Please do not hesitate to contact MFDD’s experienced family law attorneys for advice on child support and all other legal matters related to divorce or separation.  MFDD offers comprehensive initial consultations to address all family law questions at a reasonable cost.

William H. Dayton, Jr.

Can You be Liable for the Bills and Support of an Indigent Parent in Pennsylvania?

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Pennsylvania has had some form of law on its books imposing a duty upon a child to support indigent parents since 1771. Previously these laws were part of Pennsylvania’s Welfare Laws, but since July, 2005 they have been part of its Support Laws. These types of laws are known as “filial support laws” and in Pennsylvania the law can be found at 23 Pa. C.S.A. §4603 (hereinafter the “Pennsylvania Support Act”).

The filial support laws exist for the primary purpose of limiting the financial burden the government incurs as the “payor-of-last-resort” for support and necessary services of a person.  In other words, these laws exist in order to relieve the government from the burden of supporting poor people who have family members that are capable of paying for a poor person’s care. 

            The Pennsylvania Support Act states that the spouse, child and a parent of an indigent person are responsible for the cost to care for and maintain or financially assist the indigent person regardless of whether the indigent person is a public charge. The only two exceptions would be if the individual who has potential liability does not have the financial ability to support the indigent person, or in the case of a child who has potential liability to support a parent, if the parent abandoned the child for a period of ten years or more prior to the child reaching age 18.

An action under the Pennsylvania Support Act can be brought by the indigent individual or any public agency involved in the care of the indigent person, such as Department of Public Welfare. In addition, it has long been the law in Pennsylvania that a nursing home which provides an indigent parent with shelter and care has a sufficient interest to apply the Pennsylvania Support Act against the parent’s child.  

As the Court recognized in Savoy v. Savoy, 641 A.2d 596, 599 (Pa. Super. 1994), the Pennsylvania Support Act does not define the term “indigent”. The public assistance guidelines used by the Department of Public Welfare to determine eligibility for Medicaid are not used to determine indigent status because the Pennsylvania Support Act applies to individuals regardless of whether they are a public charge. The Savoy Court held that Pennsylvania Courts have applied the common-law definition of indigence and in doing so have held that:

The indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public.  Indigent persons are those who do not have sufficient means to pay for their own care and maintenance.  “Indigent” includes, but is not limited to, those who are completely destitute and helpless.  It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support.

A child’s parent was deemed to be indigent because the child removed over $100,000.00 from the mother’s bank account causing the mother to be unable to pay for her care and support.  Presbyterian Medical Center v. Budd, 832 A.2d1066 (Pa. Super. 2003). Another example of the Court finding a parent indigent involved a situation where a mother received $1,000.00 per month as income and the Court determined that this was not sufficient for the mother to adequately provide for her own maintenance and support. Healthcare and Retirement Corporation of American v. Pittas, 46 A.3d 719, (Pa. Super. 2012).

The Pennsylvania Support Act does limit the amount of liability that can be assessed against an individual for support of an indigent person or services provided to them.  The amount of support liability during any 12 month period must be the lesser of (i) six times the excess of the liable individual’s average monthly income over the amount required for the reasonable support of the liable individual and other persons dependent upon the liable individual or (ii) the cost of the medical assistance for the aged person. 23 Pa.C.S.A. §4603(b). The Department of Public Welfare may adjust the liability set by Court Order, even to the point of eliminating the liability completely.  In the event there is a Court Order for an individual to pay filial support and the person fails to comply with that obligation, the liable person may face contempt charges, and if found to be in contempt, could be sentenced to up to six months in prison in addition to having to satisfy the Court Order. 23 Pa.C.S.A. §4603(d).

While not having sufficient financial ability to support the indigent person is a defense to a filial support action, mere assertion of inability to pay for the indigent parent without sufficient proof is not enough.  In Pittas, the nursing home was able to establish financial ability for a son to pay by submitting four years of the son’s tax returns and bank account statements. Pittas also held that the Pennsylvania Support Act does not require consideration of a pending Medicaid application, or that other members of the indigent person’s family may be able to support the indigent parent. Accordingly, a third party providing necessary services for an indigent parent may choose from one or more of the possible family defendants against whom to file its claim.  The family member named in the initial legal action may join any other family member allowed under the Pennsylvania Support Act, such as the indigent person’s spouse or other children of the indigent person.

There is no provision in the Pennsylvania Support Act which requires a Court to consider the good or bad behavior of a potentially liable individual. A child who has had no relationship with an indigent parent could be found to have the same liability as a child who has an ongoing relationship with the indigent parent during the same period of time. Whether a child provides care, services and comfort to the parent, or has improperly handled the parent’s assets, there is no difference in applying the statute. The statutory relationship of the relative to the indigent individual and the statutory relative’s ability to pay are the only requirements necessary under the Pennsylvania Support Act.  Presbyterian Medical Center v. Budd, supra.

The current case law in Pennsylvania now allows collection actions to be instituted against an adult child for the long-term care obligations of a parent retroactively, in addition to establishing a support obligation prospectively. Liability under the Pennsylvania Support Act has been interpreted to place an affirmative duty upon a child of an indigent person to reimburse from the child’s assets, the expenditures of a third party on behalf of an indigent parent. Albert Einstein Medical Center v. Forman, 243 A.2d 1066 (Pa. Super. 2003). In Pittas, supra, the Pennsylvania Superior Court upheld a Lehigh County judgment in the amount of $93,000.00 rendered in favor of a nursing home and against the son of a mother who spent six months in the facility and then relocated to Greece without paying the bill. The restaurant owner son, who was married with a child and a second on the way and claimed an annual income of $85,000.00, was found liable for the full amount of the judgment despite the fact that he did not have any contractual relationship with the nursing home; the mother had income of $1,000.00 per month; there was a pending Medicaid application for the mother; and two other siblings of the son lived in Greece.

The Pittas decision was appealed to the Pennsylvania Supreme Court, but it decided not to hear the appeal. 63 A.3d 1248 (Pa. 2013).  Thus, the Superior Court decision in Pittas is currently the law of Pennsylvania with regard to filial support obligations being applied retroactively.

            Several pieces of legislation regarding the Pennsylvania Support Act were proposed in both the Senate and House of Representatives during the 2013-2014 legislative year.  All of the proposed bills would have lessened the impact of the Pennsylvania Support Act, even to the point of removing potential relative liability altogether.  However, the fact that no action has been taken on any of these bills demonstrates that Pennsylvania will continue to maintain that the government is to be the payor-of-last-resort.

Items of interest on this matter, and in particular the Pittas case, are a news article by Susanna Kim for ABC News entitled Pennsylvania Man Appeals to Court to Avoid Paying Mom’s $93,000.00 Nursing Home Bill and a video presentation posted on YouTube, entitled Elder Law Expert Katherine Pearson Explains New Family Support Decision in PA and its Policy Issues.”

As with so many issues in the elder law and estate planning areas, competent legal advice is necessary, and Mosebach, Funt, Dayton & Duckworth, P.C. is available to assist you.

MFDD Attends Law Day Luncheon

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lawday2MFDD was proud to participate in the May 1, 2014 Law Day Luncheon held at the Bar Association of Lehigh County. Five members of the firm were in attendance (L-R Hal Funt, Debbie Galm, Jenal Hettler, and Tim Duckworth, Jr. – John Hacker not shown). The event focused on the fundamental need of the United States as a democracy to ensure that every citizen has the right to vote. The striving to establish every citizen’s right to vote has been, and continues to be, a central theme of American legal and civic history. The League of Women Voters of Lehigh County was honored for their untiring efforts in securing the right to vote for all American citizens.

Shareholders Attend CIS Awards Dinner

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Shareholders Barry Mosebach, Bill Dayton, and Kristie Beitler attended the Communities in Schools Lehigh Valley Awards Dinner at DeSales University on Wednesday, April 23rd, 2014.  Kristie is a current CIS board member and Barry has previously served on the Board.  Mosebach, Funt, Dayton & Duckworth, P.C. continues to be a proud supporter of the CIS program, which helps at-risk students achieve high school diplomas.