Keeping Your Sanity During Divorce

In a post last year, we discussed the increasing role of social networking sites such as Facebook as sources of evidence in Pennsylvania family courts. In those cases, evidence taken from Facebook posts was very useful in family court, particularly in the contexts of child custody and visitation disputes. Recently, in other states, Facebook has been used in the criminal setting, to enforce child support orders and track down delinquent parents.

In Wisconsin, a father's Facebook posts were used as evidence in felony child support case. In one post, he writes "Betcha baby daddy ain't jackin' like this," implying wealth. Such comments, along with pictures of him holding up a large wad of cash and traveling, are cited as evidence that he could afford to pay the thousands of dollars owed in child support.

Meanwhile, in North Carolina, deputies have launched a Facebook page called Columbus County Dead Beat Parents, which targets those wanted for not paying child support. The Sergeant in charge of the page shares the alleged dead beat parents' photos and links to their profile, hoping that anyone with information as to their location will call contact the authorities. Since child support order arrests are public record, this is within the department's rights as a means to locate parents with active Orders for Arrest for Child Support.

To say that adjusting to parenting after divorce can be a difficult process would be an understatement. Collaborating with a newly estranged spouse to craft schedules and boundaries can be emotionally draining, and trying to abide by those new boundaries can understandably lead to confusion and even resentment. In this time of transition, circumstances can change, and orders that seemed reasonable at the time, may become unworkable, often requiring modification of the order. Other times, whether due to misunderstanding of terms, or simply a refusal to obey them, violations of custody orders do occur. In the latter cases, a parent may seek court enforcement of the custody order against the violating parent, by filing a Petition for Contempt. But what if a violation signals a need for modification of the custody order?

Last month, in P.H.D. v. R.R.D., the Pennsylvania Superior Court addressed the propriety of a trial court's modifying a custody order in the context of a contempt hearing where neither parent had filed a petition to modify the order. Leading up to this case, R.R.D. (Father) and P.H.D. (Mother) had a custody order that strictly limited R.R.D "to have no contact with the children other than [weekly] supervised visits," and made his custody contingent on his going to therapy. After Father attended the school concert of one of their children, Mother filed a contempt petition against Father, claiming that he violated the terms of the custody order by "initiating unsupervised contact." In filing her contempt petition, Mother did not ask the court to modify or clarify the custody order, but simply to enforce it. In responding, Father also did not seek modification. At the contempt hearing, Father claimed that he believed that the order stating "no contact" meant no talking or physical contact with the children. The trial court dismissed the contempt petition, but in doing so, "clarified" the custody order, directing Father "not to appear at places where the children would be reasonably expected to be." As this "clarification" placed more restrictions on Father, it was essentially a modification of the custody order.

On appeal, the Superior Court found that the trial court had abused its discretion in modifying the custody order when no request for modification was in place. The Court went on to explain: "The custody court does not possess some ongoing, continuous supervisory role over the life of a family, however broken that family may be. Rather, the court's jurisdiction is triggered only when invoked, and then only upon proper petition and notice." Once the trial court had ruled on the contempt issue, its job was over. To go on to modify the custody order, even if they thought they were simply "clarifying" it, was overreaching, and denied Father his due process rights. Because no petition for modification was pending, Father had no notice that custody was at issue, and no opportunity to prepare for a modification trial.

Last week, the Superior Court decided a case dealing with grandparents' custody rights, and affirmed that biological parents have an advantage in such proceedings. In V.B. and C.B. v. J.E.B. and C.C., a father appealed a decision that awarded primary custody to the grandparents of children he fathered while in a polyamorous relationship with their mother and her husband.

The maternal grandparents had previously shared custody with mother and father, who no longer co-habit, but remain cooperative and practice co-parenting. In 2011, the grandparents filed a petition requesting that either they or the mother receive primary physical custody. As part of this matter, the County conducted a comparative home custody evaluation of the parents' homes. The County did not investigate the grandparents' homes, and instead the trial court accepted an expired foster home license as evidence that their residence was appropriate. Despite finding that the father's home was reasonable, and that one of the children expressly disfavored continuing visitation with grandparents, the trial court determined the grandparents were "better suited to nurture and develop the minor children." The grandparents were awarded sole legal custody and primary physical custody of the children.

Under Pennsylvania law, there is a presumption in favor of birth parents over third parties in custody disputes (23 Pa.C.S § 5327(b)). To overcome this presumption, the third party seeking custody must provide "clear and convincing evidence." In reversing the trial court's decision, the Superior Court criticized the lower court for "inject[ing] artificial morality concerns in its best-interest analysis. In determining whose custody would be in the best interest of the children, the lower court relied heavily upon the fact that the father had been involved in a polyamorous relationship. The Court cited a prior case that a parent's prior sexual conduct is not a relevant consideration unless it has an adverse effect on the child. Such precedent was not followed by the lower court, who called the father's lifestyle "unworkable" even though he was no longer engaged in a polyamorous lifestyle, and there was no evidence that such a lifestyle had harmed the children or posed any present harm to them.

Also relevant to custody matters is "the level of conflict between the parties and the willingness and ability of the parties to cooperate" (23 Pa.C.S § 5328(a)). The Court criticized the grandparents for "intermeddling" with and "usurping" the parents' authority over the children, and lamented that the lower court "rewarded Grandparents for their interference by granting them sole legal custody." In reversing the decision to grant custody to the grandparents, the Court discussed the presumption favoring birth parents, noting "had the parties started on a level playing field, we would be disinclined to disturb the trial court's conclusion." In fact, even a showing that the grandparents were "more capable parents" than the birth parents would not have been enough to rebut the evidentiary presumption in favor of the birth parents.

In an earlier post on this blog, we discussed the Pennsylvania Supreme Court Domestic Relations Rules Committee's updates to the child support guidelines, which will go into effect later this year. The Committee's recommendations were guided by Dr. Jane Venohr's economic study, which the Committee posted for review along with the proposed changes. This economic study reveals some interesting facts about Pennsylvania families, in general, as well as how they have changed even in the past few years.

The gender implications of the data are rather interesting. In the majority of the analyzed cases, support was calculated assuming primary physical custody was granted to one parent, and in fact that was the case in 99% of orders. The math further reveals that this responsibility falls disproportionately to mothers. Almost 1/3 of Pennsylvania children live in a single-parent household, yet females comprise 83% of the custodial parents in new orders and 91% of the custodial parents in modified orders. This has been the trend for at least the past decade. At the same time, 37% of female-headed families with children live at or below the poverty level and only 17% of female-headed families with children make $50,000 or more per year. To contrast this, 37% of two-parent families with children have annual incomes of $100,000 or more.

The recession has shown a marked effect on family incomes and spending patterns. Downward deviations in recommended child support are more common in Pennsylvania than most other states. These deviations tend to go down as obligor's income goes up. Because of the recession, the unemployment rate in Pennsylvania increased from 5.0% in 2005 to a high of 8.5% in 2010, and then decreased to 7.9% in 2011. The resultant job loss and lowered wages has led to a major increase in the number of modified orders in Pennsylvania in recent years. Child-care costs also lead to adjustments to support orders, but this seems to have decreased, possibly because the recession created more unemployment, thus less people working outside the home and needing child care.

Cost of healthcare also seems to play an important role in the cost of raising a family, as that seems to be the biggest cause of adjustments to support orders. Dr. Venohr discussed healthcare costs at great length, predicting that healthcare reform would likely change that (and in turn change child support schedules), but there was not sufficient information at the time of the report to have that affect the most recent guidelines. However, this could be a major change come 2014 when the Affordable Care Act (ACA) is supposed to take effect. Dr. Venohr predicted that the impact of ACA would largely vary based on income. For low-income families, medical out-of-pocket expenses are expected to decrease (or be eliminated), as more low-income families should be eligible for Medicaid. For those on the exchange, ACA imposes a sliding scale: insurance premiums and other costs (co-pays and deductibles, for example) cannot exceed 9.5% of income for those in the highest income bracket.

It will be interesting to see how changes in the economic climate of our country will continue to create changes in the families, and family law, of Pennsylvania.

The Pennsylvania Supreme Court Domestic Relations Rules Committee has reviewed and proposed updates to the child support guidelines, which will go into effect later this year. The Committee, as required by federal law, reviews the child support guidelines at least every four years in order to assure that they appropriately reflect current economic data on the costs of raising children. .The Committee's Recommendation 116 (which has been posted for review on the PA Supreme Court website, here) is guided by Dr. Jane Venohr's economic study.

Ultimately, the tipping point on the new guideline schedule appears to be cases where the parents' combined income exceeds $3500 per month. In those cases, the Committee recommends an increase in child support from the previous schedule. In cases where combined income is less than $3500 per month, the recommended support decreases slightly.

For low-income cases, the Committee has recommended an increase Self-Support Reserve to $931 per month, the 2012 federal poverty level for one person. This means that if a parent has a monthly net income of $931 or less, they will only be obligated to pay child support after the court considers that parent's actual living expenses. In cases above the poverty level, but still considered low-income ($1100), the Recommendation introduces a two-step consideration--first looking to the Schedule using the parent's income alone, then considering both parents' monthly net incomes. In these cases, lower of the two calculations will be that parent's child support obligation. This is meant to address inequality in situations where the parent obligated to pay child support has a very low income, and the spouse to whom child support is paid has a significantly higher income.

For high-income cases (parents' combined monthly net income >$30,000), the Committee retains their three-step formula from the current guidelines, but increases percentages of combined net income within the formula.

In cases of shared custody, the Committee has recommended that if the parent receiving support receives a larger share of their combined income, the court will adjust the support obligation so that the combined income is allocated equally between the two households, and removes spousal support. Previously, this remedy was only employed in a segment of these situations, as based on the statutory formula.

Recommendation 116, including the full child support schedule table, can be downloaded in its entirety here, and remains open for comments, suggestions or objections through Friday, August 3, 2012.

In an earlier post on this blog, we discussed the increasing role of social networking sites such as Facebook as sources of evidence in Pennsylvania family courts. Last week, a Pennsylvania court dealt with Facebook discovery in the context of a personal injury case.

In Trail v. Lesko, a motor vehicle accident case, both the Plaintiff and Defendant sought to gain access to each other's private Facebook profiles. Before ruling on the motions, the court provided a thorough background of cases tackling the issue of Facebook discovery in the context of personal injury trials. In Pennsylvania, the courts have required a showing of relevance prior to any kind of discovery, and require the party seeking access to articulate facts that suggest that information relevant to the case may be contained in the non-public portions of the Facebook profile. PA Courts have often looked to the publicly available portions of a user's profile in order to form a basis for further discovery. For example, in a 2010 case (McMillen v. Hummingbird Speedway Inc.), the plaintiff claimed substantial injuries, but his publicly visible Facebook profile contained comments about going on a fishing trip and other activities. Because the public profile had relevant information, the indication was that more relevant information might be contained in the plaintiff's private profile content, so the motion to compel access to the private profile was granted. However, access was denied in a 2011 case (Arcq v. Fields), because the party seeking access did not articulate any reasonable, good-faith basis for believing the private profile had relevant information.

In last week's case, the Defendant claimed he was not the driver at the time of the accident, so the Plaintiff sought to compel access to Defendant's Facebook profile in order to view posts around the time of the accident which could help confirm or disprove his whereabouts. Furthermore, suspecting that Defendant had deleted certain posts that mentioned his activity on that day, Plaintiff sought to gain information from Facebook regarding any deleted or altered content. Conversely, Defendant filed a motion to compel access to Plaintiff's Facebook profile in order to show pictures of Plaintiff at parties, which he claimed would disprove Plaintiff's claim of injuries. However, the Defendant had later admitted that he had been driving the vehicle, and was intoxicated at the time. Thus, the issue of whether he was the driver was no longer in dispute, so gaining access to his Facebook profile would not provide any relevant information. Likewise, though Plaintiff's profile did contain pictures of him enjoying himself at parties, Plaintiff was never claiming to be "bedridden" or unable to go out and socialize, so the pictures did not add any relevant information disproving Plaintiff's claim of injury. Thus, both parties' motions to compel access to each other's Facebook profiles were denied.

In denying both parties' motions, the court also used as guidance Pennsylvania's statute regarding the scope of discovery. Under Pennsylvania law, discovery is not permitted if it causes "unreasonable annoyance, embarrassment, oppression, burden or expense" (Pa R.C.P. 4011(b)). Whether it is "unreasonable" hinges on the need for discovery, as weighed against the potential harm caused. For example, if the discovery would provide relevant information that was not otherwise available, it may be considered reasonable, despite its intrusiveness. Here, however, the Facebook profiles would not have provided relevant information, so the threshold was not met to allow discovery.

Last week, the Superior Court considered whether a severely restrictive custody order was tantamount to termination of parental rights, eliminating the obligation for support. Because termination of parental rights forever severs that relationship, an order terminating parental rights also terminates a parent's obligation to pay child support. In Kimock v. Jones, a father claimed that a custody order was so restrictive, that it was analogous to involuntary termination of parental rights. [Note: The issue of involuntary termination under the Adoption Act was discussed in last week's blog post, here] The custody order in this case granted sole physical and legal custody to the mother, and denied father any contact with the child except as permitted by mother.

The father had abused both mother and daughter before the divorce, and had no contact with daughter after the divorce until father initiated a custody action. The court ordered father and daughter to participate in reunification counseling therapy, with the goal of establishing regular visitation, and partial custody for the father. However, therapy did not go well, and ceased after just five sessions. A subsequent psychiatric evaluation ordered by the court revealed that father suffered from bipolar disorder, and recommended that he undergo extensive psychotherapy before any further reunification therapy was attempted with the daughter. The father denied that he was bipolar, and refused the psychotherapy. Years later, when the daughter was 16 years old, father again sought to modify custody and to compel reunification therapy with daughter. A psychiatric evaluation of daughter showed that she strongly opposed reunification therapy, and threatened to harm herself if forced to participate. The trial court therefore denied father's request to modify custody, and determined that shared legal custody was not in the daughter's best interests.

Father sought to terminate child support, claiming that the restrictive custody order effectively terminated his parental rights. The Court drew many distinctions between the two issues, however. Unlike in a child support matter, when determining whether to involuntarily terminate parental rights "the best interest of the child is not the first and only consideration," since statutory requirements that serve to protect the parent's liberty interest must also be met. By contrast, since a custody matter does not divest parental rights--it simply involves a determination of which parent will best be able to serve the needs of the child--the best interests of the child is the "principal goal." Under Pennsylvania law, a support order may be terminated if the parent can demonstrate a "material and substantial change in circumstances" (Pa.R.C.P. 1910.19(a)). The restrictive custody order did not meet this standard because it did not affect the father's finances or the child's needs, so had no bearing on father's ability to pay support. It was also of importance that the custody order did leave open the possibility for reunification of father and daughter if the father would address his mental health issues.

This case demonstrates the importance of child support law that has as its primary goal the best interests of the child. Here, the father's own misconduct led to estrangement from his child, so it would be perverse to allow such misconduct to free a parent from his obligations to his child.

The law has long considered a parent's care and custody of his or her child to be a fundamental liberty interest, and does not treat the decision to involuntarily terminate those parental rights lightly. Last month, in In Re: Adoption of S.P. , the Pennsylvania Supreme Court dealt with this delicate issue as it considered the bearing a parent's incarceration may have when deciding whether to terminate a father's parental rights.

In this case, the child ("S.P.") was born to a seventeen-year-old mother who was herself in foster care, and a nineteen-year-old father who was incarcerated for attempted murder before the child was even born. The mother took S.P. to visit the father while he was awaiting trial in county jail, but visitation was denied once the father was transferred to a state prison. While in prison, the father did not provide S.P. with any support out of his prison wages. Meanwhile, S.P. was adjudicated dependent due to mother's issues with drugs and involvement in a domestic assault. Furthermore, it was revealed that S.P. had developmental delays and was possibly autistic. Mother voluntarily relinquished her parental rights to S.P. (as well as S.P.'s younger half-sister). S.P. was placed in the custody of a great-aunt, who began to pursue adoption of S.P. This adoption required the termination of father's parental rights; the county Children and Youth Services (CYS) filed a petition for involuntary termination.

Under Pennsylvania adoption law, involuntary termination of parental rights requires evidence that the parent's "repeated and continued incapacity . . . has caused the child to be without essential parental care, control or subsistence . . . and that the conditions and causes of the incapacity . . . cannot or will not be remedied by the parent" (23 Pa.C.S. § 2511(a)(2)). While the trial court granted the termination, the Superior Court reversed, citing a 1975 Pennsylvania Supreme Court case establishing that incarceration alone is not a sufficient basis to terminate legal rights (In re: Adoption of McCray). On appeal, the Pennsylvania Supreme Court reinstated the trial court's order terminating father's parental rights. The court stated that, while incarceration alone is insufficient, it is a factor ("and indeed can be a determinative factor") in involuntarily terminating a parent's rights where the incarceration causes the child to be "without essential parental care, control or subsistence." Furthermore, the length of a parent's incarceration is considered "highly relevant" in determining whether "the conditions and causes of the incapacity . . . cannot or will not be remedied by the parent" (as is required by the Pennsylvania statute).

Relevant to the Court's finding seemed to be the fact that father had been incarcerated for S.P.'s entire life (during which he barely saw and did not financially provide for the child), and that even if father were released, he could not assume physical custody because he would live in a half-way house and would need to obtain employment in order to provide for the child, especially considering S.P.'s special needs. The Court also stressed that the child had never had a relationship with father, whereas the child had developed a strong bond with the half-sister for two years of being raised by their great-aunt.

In the recent case of Schiavone v. Aveta, the Pennsylvania Superior Court addressed the personal jurisdiction of a New Jersey company when one of its employees was involved in a car accident in Pennsylvania while commuting to his home in a company car.

The company, R.J. Aveta , is a New Jersey pool company that does business exclusively in the states of New Jersey and New York, and has not conducted business in Pennsylvania. Their employee, however, was a resident of Pennsylvania, commuting to and from work in New Jersey using a company car. The plaintiff was also a Pennsylvania resident. Aveta claimed that they should not be subject to personal jurisdiction in Pennsylvania, since it was not proven that the company had any contacts with Pennsylvania other than allowing its employee to use a company car to drive to and from work. The trial court agreed that this did not establish the "minimum contacts" necessary, and dismissed the plaintiff's suit for personal injuries against the company for lack of personal jurisdiction.

In reversing, the Superior Court addressed what it means to be acting in the scope of employment. In order to establish jurisdiction against Aveta, it had to be shown that the company was acting through its agent at the time of the accident (see 42 Pa.C.S.A. § 5322(a)(3)). The Court noted that under Pennsylvania's Worker's Compensation Act, an employee generally cannot recover for injuries that occur away from an employer's premises or while coming to and going from work (see 77 P.S. §411(1)). However, there is an exception: when the employment contract includes transportation to and from work, the employee has been considered to be acting within the scope of employment during the commute. This exception requires that the injury occurs during the commute, the employer controlled the means of transportation, and the company provided for the costs and expenses related to the commute.

The Court found that this case fit that exception, since the accident happened when the employee was commuting from work in a car that was owned, maintained, and insured by the company. Aveta owned the car, and paid for all operating costs, including repairs, gas, and car insurance. Therefore, the Court held that an employee commuting home from work in a company-owned vehicle for which all travel expenses are paid for by the employer is acting within the scope of his employment. Because of that, it was proper that the employer would be held responsible for injury caused by the employee's driving in this situation, and subject to personal jurisdiction for that specific incident.

Divorce can create many contentious issues between couples. But, while the law provides guidance with respect to property distribution and child custody, there is no established approach for something that does not fit neatly into either category--frozen embryos that were created with the intention to have children.

This week, the Superior Court dealt with an issue of first impression in Pennsylvania--namely, what to do with frozen embryos when a couple divorces. In Reber v. Reiss, the ex-husband disputed the lower court's decision order of equitable distribution which awarded frozen pre-embryos to his ex-wife. The embryos were produced by the couple and frozen in 2004, before the Reiss was to undergo chemotherapy for recently -diagnosed breast cancer. She delayed cancer treatment for several months in order to accommodate the in vitro fertilization process. Following her extensive breast cancer treatment, the wife was rendered unable to have children, thus leaving the frozen embryos as her only chance to produce children that were genetically hers. The couple separated in 2006. The wife sought ownership of the embryos for implantation. The husband wanted them to be destroyed, as he did not wish to have a child with his ex-wife, nor incur the financial burden. The trial court balanced these competing interests, and decided that while "ordinarily the party wishing to avoid procreation should prevail," the special circumstances of this case--that the wife was unable to procreate without use of the embryos--outweighed the husband's desire to avoid procreation. Thus, the trial court awarded the wife the embryos as part of her equitable distribution.

On appeal, the Superior Court noted that there is no precedent in Pennsylvania on this issue. In examining how this issue has been dealt with in other states, they found three different approaches: the contractual approach, the contemporaneous mutual consent approach, and the balancing approach. In the "contractual" approach, the court looks to prior agreements between the parties regarding disposition of the embryos. Most states have honored such agreements, if they exist (one exception is Massachusetts--see A.Z. v. B.Z.). In the "contemporaneous mutual consent" approach, employed by Iowa, the court directed the couple to come up with a new agreement as to how the embryos would be distributed. The Superior Court opined that this approach seemed unrealistic, since the couple would not be in court if they could reach a mutual decision on their own. Finally, in the "balancing" approach, the court balances the competing interests of the parties in determining disposition of the embryos. While the Court stated that the case did not require a decision of which approach Pennsylvania should adopt, they noted that the "contractual" approach would not apply since the parties did not sign a consent form regarding disposition of the embryos, and that the "mutual consent" approach would not work since it was clear from the case that they could not reach a mutual agreement. Thus, they employed, like the trial court below them, the balancing approach. In the end, Superior Court affirmed the trial court's decision, awarding the embryos to the wife since her interest in procreating was greater than her ex-husband's interest in avoiding procreating.

Pennsylvania's new Child Custody Act (23 Pa.C.S.A. §§ 5321 et seq) went into effect in early 2011, and since then, there has only been one reported decision addressing the new statute. [That case, E..D. v. M.P., was discussed in an earlier post on this blog.] Last week, the Superior Court decided another case that can further help elucidate issues that arise under the new relocation statute.

In that case, C.M.K. v. K.E.M., a mother-- following the notice procedures for custody relocation under the new custody statute--sent notice to the child's father of her intention to relocate 68 miles from Mercer County to Erie County. The child's father filed objection to the relocation. The trial court held a relocation hearing, and ruled against relocation, as the child's mother did not meet the burden of "proving that relocation with Child would be in Child's best interest." The new relocation statute defines relocation as "a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights" (23 Pa.C.S.A. § 5322). Under Pennsylvania law, a parent wishing to relocate must serve notice to the other parent; and a child can only be relocated with the consent of the nonrelocating parent, or with court approval following a hearing. The trial court noted that, by serving the father notice of her proposed move and requesting a hearing on relocation, the mother "tacitly conceded that her proposed move involved relocation" under the statute. Further, the trial court viewed this proposed move as "significantly impairing" the father's custodial rights, thus failing the standard set forth in the statute.

On appeal to the Superior Court, the mother argued that this was not a true "relocation," despite having followed the procedures set forth in the statute, and filing her request as such. She argued that the proposed change did not "significantly impair" the father's rights because her plan involved an additional 21 hours, so there would be no reduction in overall time with the child due to travel time. Though the Superior Court affirmed the overall result, denying relocation, the Court disagreed that the mother "tacitly conceded relocation" simply based on her procedural compliance of serving notice and requesting a hearing. Analyzing the statute, the Court concluded that the mother's requesting a hearing "neither foreclosed litigation on the issue of relocation nor did it raise a presumption that her proposed move constituted relocation" under the statute. Instead, the Court based its decision that this constituted a relocation under the statute "solely on the ground that the proposed relocation threatened significant impairment of Father's ability to exercise his custodial rights." Furthermore, the Court noted that the child had a "strong support system" in Mercer County, including his father's parents who sometimes provided childcare--and that he would not have an "equally strong support system" in the proposed new home, where he would also face the challenge of adjusting to a new neighborhood and school. While the Court acknowledged potential benefits arising from the move, they dismissed the economic improvement as "speculative," seemingly discounting potential improvement of relocation when faced with a potential threat to the other parent's custodial rights.

Thus, this recent case introduces both procedural and substantive guidance in the area of relocation. Procedurally, a party is not foreclosed from litigating relocation simply because she followed the steps set forth in the statute--complying with the statute is not a "tacit admission" of relocation. Substantively, however, this case shows the high threshold expected to be met in a relocation hearing. In addition to satisfying the ten-factors set forth in the statute, potential benefit to parent and child seems narrowly construed, while potential threat to custodial rights is a serious hurdle.

Earlier this month, in the case of Piester v. Hickey, the Eastern District Court dismissed a claim for punitive damages arising from the fact that the defendant driver was allegedly using a cellphone at the time of the car accident. The plaintiff claimed that the accident occurred when the defendant "'looked at' and/or 'used'" his cellphone, thus failing to operate his car safely.

Under Pennsylvania law, punitive damages are considered an "extreme remedy," awarded only when the defendant shows an "evil motive" or "creates an unreasonable risk of physical harm" deemed "substantially greater" than ordinary negligence (Hutchinson v. Luddy). Punitive damages are not granted simply because someone was negligent; their behavior must be considered willful, malicious, wanton, reckless or oppressive.

In dismissing the claim for punitive damages based on cellphone use, the Court noted that, even accepting the allegations that the defendant did in fact use or look at his cellphone immediately before the accident, such conduct would not be considered "outrageous" enough to warrant punitive damages. The Court looked to the recent Lehigh County case Xander v. Kiss, which similarly addressed the issue of whether punitive damages were proper based on alleged cellphone use during driving. In Xander, as in Piester, no additional facts were pled to show recklessness.

The Court noted that punitive damages could be proper if the complaint alleged additional facts showing "reckless indifference." Such claims have been supported in cases where the plaintiff, for example, exceeded the speed limit, ran a red light, or "otherwise drove erratically."

Continue reading "Pennsylvania Federal Court Denies Punitive Damages Based on Cellphone Use in Car Accident " »

When a couple divorces, the question of what to do with the family pet has increasingly become an issue. A recent article by the Associated Press notes a rise in custody cases involving pets around the country. This trend has been growing for quite some time. In a 2006 survey from the American Academy of Matrimonial Lawyers (AAML), approximately 25% of lawyers polled responded that custody cases involving pets have increased noticeably since 2001. However, the AP article notes that this conflict has become even more common recently, partly due to dissolutions of same-sex marriages, civil unions, and domestic partnerships. Regardless of the form a relationship takes, the courts have long had a process of addressing custody of children from the fallout of a relationship. And typically, when both a child and a pet are involved in a divorce, judges will keep the pet with the child, so custody will generally be awarded to the parent who has primary custody of the child. But, as AAML president Ken Altshuler asks, "What do you do when the pet is the child?"

In ruling that pets are not subject to custody or visitation agreements, the Court made a judgment that goes against the emotional reality that many people face. Some states have recognized this, and changed with the times-- AAML president Ken Altshuler notes, "Judges are viewing [pets] more akin to children than dining room sets." Virginia and New York, for example, have looked to the "best interest" of the pet in determining custody, similar to that of a child. Other states, such as Maryland, have awarded joint custody of a family dog. But the vast majority of states, including Pennsylvania, still views pets as property. Whether that will change to more accurately reflect the reality of the issue for pets and their owners remains to be seen.

A recent Superior Court decision once again demonstrates the complex doctrine of common law marriage as it exists in Pennsylvania.

Last month, the case of Vignola v. Vignola revealed another issue within this framework. In this case, while the alleged common law marriage was formed prior to the 2005 statute, a mother who cohabited with her children's father was prevented from invoking the doctrine common law marriage when filing for divorce against the man she claimed to be her husband. The mother had previously sued the father for child support and spousal support in 2007. While her support request was pending, she also filed a divorce complaint, but did not move forward with it. The court granted her request for child support was granted, but denied her request for spousal support, finding no common law marriage existed since "the parties never had a ceremony where vows were exchanged." She did not take an appeal or file exceptions. In the present case, the mother filed another complaint for divorce, claiming a common law marriage existed. The father denied they were married and filed a petition for declaratory judgment declaring the same, since the court had not recognized their arrangement to be a common law marriage in the 2007 hearing. The trial court granted the declaratory judgment, and the Superior Court affirmed on appeal. While the mother claimed that determination as to the validity of a common law marriage is only proper in a declaratory judgment action, the Superior Court held that such a setting is not the exclusive forum, particularly since the issue had been raised in the support hearing years prior (and was essential to determining the basis for support), and the mother did not appeal. Thus, the mother was collaterally estopped from claiming common law marriage.

Early last year, Pennsylvania's new Child Custody Act (23 Pa.C.S.A. §§ 5321 et seq) went into effect. One notable change that the statute made was regarding the issue of relocation, which it generally defines as "a change in a residence of the child which significantly impairs the ability of a nonrelocating party to exercise custodial rights" (23 Pa.C.S.A. § 5322). Under Pennsylvania law, a child can only be relocated with the consent of the nonrelocating parent, or with court approval following a hearing. Prior to the new Child Custody Act, the courts used as guidance precedent from cases such as Gruber v. Gruber, which proscribed a three-prong test for considering relocation. Additionally, the courts seemed to support a "trickle down" theory--approving relocation "if the custodial parent significantly benefits from the move the benefit flows to the child." The new statute clearly does away with this "trickle down" approach, and instead introduces 10 factors to consider, which consider both the benefits to the relocating parent as well as the best interests of the child.

Thus, the recent case of E.D. v. M.P. shows that, in preparing for a relocation hearing, these ten factors should now specifically be referenced and considered at trial, even for modifying custody arrangements that predate the new Act.