What is adoption?
Adoption is the process by which third parties can adopt a child and that child will be the child of the parties as if born to them. An impediment to adoption can be a biological father who challenges the biological mother’s right to place the child for adoption. In instances where there is a “familial” adoption, meaning, for instance, adoption of a child by a mother’s new husband of the child from a former relationship and/or marriage, there has to be a termination of the other parent's rights. In the event that the other parent will not voluntarily relinquish that right, an adopting parent has to file a Petition to Terminate Parental Rights and prove certain things about that parent.

With regard to foster care, it is now possible in Pennsylvania for foster parents to file for adoption of a foster child, whereas in the past, their rights were very limited because the agencies such as Children and Youth Services and/or the Department of Human Services had “custody” of the child and not the foster parents. The law in Pennsylvania has made a change to the benefit of foster parents and the children for whom they care.

What is Paternity
With the discovery of DNA, it is now possible to determine the paternity of a child with almost 100% certainty. In almost every state, a court can Order a putative father to undergo DNA testing. This is usually Ordered upon the filing of a Complaint for Support by the mother in the event that the father will not acknowledge paternity. Paternity testing is done by having DNA from the father, the mother, and the child. Not only is paternity testing done for the purpose of securing child support, but it is also done in situations where an adopted child wants to learn about her biological parentage so that she can secure medical history information. Obviously, this would have to be with the consent of the biological parents.

What is alimony?

Alimony is support monies paid by a former spouse to the other spouse. It helps to meet the support needs of a party who is unable to provide for his or her own support. This is separate from child support. A spouse qualifies for alimony if he or she cannot meet expenses despite distribution of marital property because that person's income is insufficient. The amount and duration of alimony are in a Court's discretion.

Can the amount of alimony be changed?

Yes. It's all based upon the circumstances of either party.

Does my or my spouse's remarriage affect alimony?

If the payor gets married, it does not affect the amount of alimony that is being paid. However, if the recipient of the alimony gets married, the re-marriage terminates the alimony. In many states, cohabitation by the recipient ex-spouse causes alimony to cease

How long will I pay alimony?

This is determined by each state and a variety of the following factors:

Income and property of both parties.
Duration of the marriage and the ages and health of both parties.
Present and future earning capabilities.
The alimony recipient becoming self-supporting.
Reduced or lost earning capability of the spouse receiving alimony due to delayed education, training or employment during the marriage.
Children in both parties' homes.
Tax consequences.
Wasteful dissipation of marital property.

What is Appellate Representation?
When you have received an Order from a Trial Court with which you do not agree, there is a remedy. In all states, there is an automatic right of appeal to an intermediate Appellate Court. It is wise to consult with counsel first to see if there are legitimate and persuasive grounds for appeal. However, there is always the right of appeal available to a litigant who is not satisfied with the Trial Court decision.

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How is custody determined?

Custody is determined by what is in the best interest of the child. Custody can be in both the parents. However, if the matter goes to court or ADR, the following factors are considered before joint or sole custody is awarded; which parent is more likely to encourage, permit, and allow frequent and continuing contact with the other parent
Which parent is more likely to encourage, permit, and allow frequent and continuing contact with the other parent
whether either parent has engaged in any violent, criminally sexual, abusive, or harassing behavior
The preference of the child, especially in pre-teens and teens.
any factor that affects the child's physical, intellectual, spiritual or emotional well-being.

How do same-sex relationships affect custody?

When a person has a life partner who has actively co-parented a child, many Courts have ruled that the life partner who did not give birth to the child has a right to spend time with that child. In 2005, Pennsylvania awarded primary physical custody to the non-biological lesbian parent. New Jersey recognized civil unions between same-sex couples in December 2006 and has specific custody provisions. Vermont, Connecticut and New Hampshire also recognize civil unions. California, Maine and Oregon have approved domestic partnerships. Massachusetts is the only state to recognize same-sex marriage.

What rights do grandparents have?

It depends on the jurisdiction. Some jurisdictions have what is known commonly as a Grandparents Visitation Act. In Pennsylvania, the Grandparents Visitation Act provides that a grandparent has visitation rights only in the event that his or her child is deceased, separated or divorced. The Pennsylvania Supreme Court has approved the Grandparent Visitation Act and the U.S. Supreme court refused to accept an appeal of the issue.

Can a grandparent ever get custody of a grandchild against a natural parent?

In a situation where a grandparent has been the one that has raised a child and has served the child's best interests, for a period of time long enough so that the child can be considered to have been raised by that grandparent, that person is deemed to be "in loco parentis" or in the place of the parent. In Pennsylvania, a grandparent has standing by statute to seek custody of a grandchild.

Can you relocate once custody is granted?

It depends on the jurisdiction. Many states now have policies, which permit relocation of a parent with children if certain requirements are met. However, before relocating, permission from the Court is necessary. In Pennsylvania, relocation is permitted if a Court is convinced that the parent is not seeking to deprive the other parent; if the move will benefit the parent seeking relocation and if a workable partial custody schedule can be put in place.

What is Custody Mediation?

Custody mediation is when a neutral trained mediator, required in Pennsylvania to be a lawyer, meets with the parties in order to get agreement on a Custody plan. In most jurisdictions now, custody mediation is required. If the custody mediator is successful, that person will generally reduce the Agreement to a writing which will be executed by both parties. In some events, the lawyers for the parties will incorporate the Agreement into a legal document to become an Order of the Court.

What type of Alternative Dispute Resolution can be used in divorce matters?

Any ADR technique can be used in divorce matters. ADR is typically used to circumvent the court system so that the dispute can be resolved more quickly. ADR refers to any dispute resolution which does not involve courts. The most common are negotiation, mediation, arbitration, and collaborative law.

Negotiation involves a bounce back of offers, counteroffers and bargaining to reach a resolution. Mediation is a problem solving method in which a neutral party assists the parties in resolving issues. Custody mediation is now required in many jurisdictions. Arbitration allows a lawyer or retired judge to decide the issues in dispute. Arbitration is binding on both parties, leaving no right of appeal. The Arbitrator is generally paid by the hour and will require a written Arbitration Agreement. In collaborative law, both parties and attorneys commit in writing a process to resolve family law issues without court intervention. Four minds work together to come to an agreement.

What is considered marital property?

Marital property is defined according to the Equitable Distribution legislation or according to the judge-made law that has developed in an equitable distribution state. Most marital property is defined as that property acquired during marriage no matter how the property is titled. Bank accounts, business and property in one spouse's name are marital property. There are a few states which are community property states and those states divide martial property with 50% going to each spouse, no matter how long or short the marriage. Recently, Pennsylvania introduced legislation which will treat companion pets as a different category of property to be awarded to a spouse.

Why do women need to know about financial matters?

Some women allow their husbands to handle all of their financial matters. So, when a divorce occurs, an ex-wife may not know how to handle the money she has just won in court or through settlement. It's important to learn how to invest the money, create budgets for the household, file a tax return, establish retirement money or refinance a mortgage. A financial advisor and Certified Public Accountant are necessary post-divorce professionals for women who are on their own financially. Your attorney can help secure these people by giving you names.

How long will a divorce take?

Each state is different because there are waiting and cooling off periods. It could be as little as 90 days or as long as two years. If you and your spouse can reach an agreement, it will help speed the process along. Otherwise, it could take a lengthy amount of time. Mutual consent no-fault divorce in Pennsylvania can be done in 90 days; New Jersey recently passed legislation approving “irretrievable breakdown” for a period of at least six months for filing on no-fault grounds. No longer does a spouse have to wait 18 months after separation before filing for a no-fault divorce.

When a Court makes a decision I don't like, do I have Recourse?

Yes. You can appeal a final Order to the Appeals Court in your state. However, if you participated in binding Arbitration, you gave up your right to appeal.

Can I get divorced if the economic issues are not resolved?

Yes, depending on your state. This process is called "bifurcation" and it severs the divorce from the economic issues to be heard later. The divorce court retains jurisdiction over the economic issues.

Is my pension included in marital property? What about the pension after we separated?

Pensions are considered marital property subject to equitable distribution to the extent the pension was accumulated during the marriage. In Pennsylvania, however, recent amendments to the Divorce Code include certain aspects of a pension from date of separation until the date of final trial! Many people are not at all happy about these amendments.

Can Courts award pets as part of equitable distribution?

Pennsylvania has just introduced legislation which seems likely to pass which treats companion pets differently than other personal property and takes note of the special relationship that family pets have with people. Should this legislation pass, and it seems likely, pets will be considered a special category of “property” when it comes to Divorce.

How do I get an Order to protect me from an abusive spouse? What if my spouse only threatens to hurt me but has not yet hit me?

The Protection From Abuse Act in Pennsylvania has been amended so that one doesn't have to wait to be abused to get Court Protection. If a spouse or live-in threatens the other so that the other spouse fears for his/her physical safety due to threats of harm, one can seek Court intervention. Of course, if a person living in the home physically harms another, including a child, one can immediately get a Temporary PFA Order and the Order is lodged with the local and state police. A person can be ordered to stay away physically, by phone,and by email from the household and any place where the other person may be. A full hearing must take place with the accused having the right to defend himself, within 10 days of the Temporary Order. A final Order will remain in effect for a period not to exceed 18 months. Most Court personnel can help with filing the Original Complaint if the abuse or threats take place in " off hours " like nights or weekends. However, one should contact a lawyer for the full hearing on the merits.

What if I believe my child has been abused by my spouse or another?
Try to ascertain the abuse by taking the child to her/his pediatrician or to an emergency room. Physicians must report their findings and charges will be filed. States vary on whether a child has to testify and whether certain “hearsay” evidence will be allowed at trial.

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Can a business be considered marital property?
Yes. In an equitable distribution state, any property acquired during marriage is subject to division as marital property. The problems usually arise when such property must be valued. This is when attorneys bring in business valuation experts to value such properties. Such businesses may be corporations which manufacture items; businesses which render services; and dental, medical, veterinary, and other professional practices. It is very wise to have within the business a “buy-sell agreement” which defines the value and parameters of the business.

Why have a buy-sell agreement?

A buy sell agreement protects a family business and provides an equitable result in the event of divorce or death. Such an agreement can place a value on your share of the business which a Court will accept for divorce purposes. Such a value can prevail in the event of death so the government doesn't’t value the business.

Why is post divorce estate planning important?

It is important because your needs, assets, and desires have changed. First of all, you will want a new will, and should have a Health Care Power of Attorney (Living Will). Beneficiaries of retirement plans and life insurance will need to be changed. Your tax information and filing status will change. You need to determine who will claim the children as dependents. You need to assign new individuals as trustees for your estate. There are many financial and estate planning issues that will need to be adjusted due to your new divorce status. You will certainly need a financial advisor and a Certified Public Accountant if your spouse managed the family finances.

What is the Grandparent Visitation Act?
The Grandparent Visitation Act is valid in Pennsylvania. There was a United States Supreme Court case known as Troxel v. Granville which held a Washington State statute for grandparent visitation to be unconstitutional because the statute from that state was much too broad, giving “anyone” the right to seek such visitation.

However, Pennsylvania has a very narrowly drawn statute which provides visitation to grandparents in very specific situations. That Pennsylvania Act has withstood constitutional challenge and the Supreme Court of Pennsylvania has upheld the Grandparents Visitation Act. The United States Supreme Court refused to hear more and therefore grandparent visitation is constitutional in Pennsylvania.

What do I do if my child's other parent abducts my child to a foreign country?

This situation is governed by a treaty known as The Hague Convention which deals with child abduction. Fifty six countries are signatories to this Treaty whose purpose is to determine where a child's "habitual residence" is and to get the child returned as quickly as possible. It is urgent that you retain an attorney who is familiar with this area of expertise as the legal steps required in the United States and in other countries are very complex. Go to the Publications section of our web site and read our Pennsylvania Law Weekly article of November 14, 2005 entitled "International Intrigue" for more information.

Why do you need a prenuptial agreement?

to protect your children from a prior marriage
to protect a family business
to protect your pre-marriage nest egg (home, pension plan, stock portfolio, or property with emotional value)
to protect inheritances and gifts you receive
to avoid difficult disputes over property in case of death (such as family businesses, stock options, professional degrees, licenses and practices, pension plans, and copyrights)
to protect yourself from your partners' pre-marriage credit card debt and /or loans
to protect yourself from a prior spouse seeking to get more property.

Does a woman still have the right to choose whether to maintain a pregnancy? Is late term pregnancy termination legal in the United States? Is a woman's health still an issue?
The right to choose was granted to women under a 1973 U.S. Supreme Court case, Roe v. Wade. That right still exists.

In 2003, the Congress passed The Partial-Birth Ban Act which prohibited a procedure known as "intact D&E". In April of 2007, the US Supreme Court decided a challenge to that legislation and held that the Partial Birth Ban Act was constitutional. In so doing, the Supreme Court eradicated any exception for the health of the woman and also left the door open for post- viability
pregnancy termination so long as the method used is not " intact D&E ". Justice Ruth Bader Ginsburg wrote a dissent in which she stated that this legislation and the Majority Opinion did nothing to save even one fetus and, moreover, ignored prior precedent of the US Supreme Court by not carving out an exception for the health of the woman

What are civil unions and which states recognize civil unions?
A civil union is a legal ceremony between persons of the same sex. The states of Vermont, Connecticut, New Hampshire and New Jersey permit civil unions. In December of 2006, New Jersey passed a civil union statute which became incorporated into the marriage statute already existing in New Jersey. People who engage in civil unions in New Jersey have all of the legal rights of married people afforded by the State. Additionally, New Jersey permits civil union ceremonies for residents of other states. Therefore, a same-sex couple seeking to have the benefits of civil union can come to New Jersey and fulfill the requirements to participate in a civil union ceremony. In the United States, only Massachusetts permits same-sex marriage. Maine, Oregon and California permit domestic partnerships

How is custody determined in a same-sex relationship?
Custody is always a determination by a Court of the best interests of the children. It does not matter whether it is a same-sex or heterosexual relationship. Therefore, the same criteria used for children of a heterosexual relationship will be applied for a same-sex relationship. Pennsylvania now has case law where children of a same-sex couple who were the biological children of one of them, were awarded to the non-biological parent because that parent fulfilled the needs of the children better than the biological same-sex parent.

How do same-sex relationships affect custody in a divorce between heterosexual people?
This question addresses the situation where a person has been part of a heterosexual marriage and/or relationship from which children were born and then becomes involved in a same-sex relationship. Courts have been appropriately treating these types of situations recently. In such a matter, a Court should be looking at who can best provide for the best interest of the children. In some situations, there may be a shared custody arrangement between the formerly heterosexual partner and the divorcing husband or wife. Certainly, same-sex relationships are much more accepted today. However, I caution people that there may be a bias by a Judge which is not apparent on the surface. On the whole, there are statutory guidelines to determine the best interests of a child and the must be followed. Pennsylvania’s Appellate Courts, those courts to which Orders of custody are appealed, have been consistently equal in their treatment of same-sex and/or heterosexual couples.

How is child support calculated?

Each state has official child support guidelines. Pennsylvania just released a new set of guidelines for 2006. The guidelines determine the method for calculating child support in each case. These guidelines are established to ensure uniformity and consistency in child support amounts. The guidelines are mostly income driven, rather than needs driven. Only large income matters look at the actual needs of the children and their lifestyle. In Pennsylvania, only when the combined net income of both parties is $20,000 per month or more, do needs play a part. With $20,000 per month or more, a Court is obligated to look at the total income of each parent, the reasonable needs of each party and the needs of the children according to the lifestyle they had maintained during the marriage. Thus, if a child attended private school, had piano lessons, tennis lessons and was accustomed to going to the theater in New York once a month, chances are that those things will continue. Guidelines control if the income is less.

What are the child support guidelines?

The child support guidelines are required by each state to have a standardized system for determining child support and to receive federal funding. The guidelines are charts based on each parent's income and the number of children. The guidelines are not exact calculations. There are a number of factors that are used to create the calculation. A court is free to increase or decrease the amount of support as long as it gives reasons for the deviation.

Who decides how much child support is paid?

Lawyers, judges and employees of the state child support enforcement office will use the child support guidelines to determine the child support.

Does my or my spouse's remarriage affect child support?

No. However, if more children are born, there is a Guideline deviation permitted to a person with multiple child support obligations, if the Obligor's total child support obligation exceeds 50% of his net monthly income.

When does child support end?

Child support ends when the child reaches age 18 or 21 or graduation from college depending on the state. It could also end if the child gets married, dies, enters the armed forces or moves permanently away from a parent's home. Pennsylvania sets age 18 or graduation from high school, whichever comes first, as the age of emancipation.

Who pays for college?

In some states, payment for college is mandatory for both parents and in other states its left to the discretion of the court. In Pennsylvania there is no legal obligation for separated and/or divorced parents to pay for college. Therefore, parties are wise to negotiate college expenses into a written agreement because a court cannot order college in Pennsylvania.

Is college part of child support?

Various jurisdictions require divorced, separated, and/or never married parents to pay for college education. Pennsylvania does not require payment by such parents for college. Therefore, in Pennsylvania, the parties will have to negotiate any college tuition and cost payments in an agreement because the law does not provide for a court to order payment of college education.

In New Jersey, however, not only is college education part of child support, graduate education may also be part of child support for a child. The tests applied in New Jersey are to look at the education of the parents and to determine what a child would have done had the parents not been divorced and/or separated. If, for example, both parents are physicians, and if both parents attended private educational universities, and assuming the ability to pay, children of that marriage, if qualified to attend such institutions, would likely attend a private university rather than a public university and may also be awarded tuition payments for graduate school and/or a court order that parents must cooperate with the student’s securing graduate school loans and making the parents financially obligated to repay the loans. Therefore, it is wise to check the policy of the State in which this issue presents itself.

Interestingly enough, there are three Ivy League Universities which have changed their policies so that no student is required to take loans; instead, outright grants are made. They are Harvard University; University of Pennsylvania; Princeton University. Therefore, should your child be qualified to attend such a school, be aware that, if accepted, and need can be proven, these students receive outright grants. These universities have adopted a policy whereby they want their students to graduate and “give back” to the world, rather than spending the next number of years of their lives attempting to repay college loans.

Is there a way to save for college without negative tax treatment?
Yes. The federal government and various states have adopted what are known as 529 Plans whereby a parent and/or grandparent can make payments to a Fund for the benefit of a college education for a child and/or a grandchild and the money earned will be tax free. Moreover, one setting up such a fund can withdraw monies once a year without penalty and can also change beneficiaries from year to year. An example would be if a new child was born and a parent wished to add that child to the Fund or if a child proves to be not suitable for college, another child may be substituted. This vehicle of the 529 Plan has proved to be extremely advantageous for savings with regard to college educations. There are some investment funds such as Vanguard, which automatically set up an eighteen (18) year plan, with more aggressive investing when the child is an infant and with more conservative investing as time approaches for the college education.

What is a 529 Plan?

This is a plan which was recently approved by the Federal government and adopted by individual states which provides for being able to save money for the college education of a child. In a 529 Plan, the plan is in the name of the custodian for the benefit of the child, and this plan differs from a Uniform Gift to Minor’s Act plan because the money is still the money of the grantor and can be withdrawn once a year and changed once a year to benefit another person. So long as the money is used for education, the interest earned on the principal is not taxed.

Who pays for extra activities and how much?

Extra activities are discretionary and may or may not be ordered by the court depending on each family's financial circumstances. Both parents are obligated to contribute. Pennsylvania has a state Equal Rights Amendment.

What is Surrogacy?

For couples who cannot conceive a child, some choose to engage the services of a surrogate to undergo a pregnancy and give birth to a child who will become the child of the couple. In some instances, the egg and sperm of the couple undergoes in-vitro fertilization and is then implanted in the surrogate mother. In that fact situation, there is never a question as to whom the child belongs. When a surrogate mother carries a child for a couple where there was either an egg donor and/or a sperm donor, there are legal ramifications if the surrogate mother changes her mind and wants to keep the baby. Surrogacy is legal in New Jersey and in Pennsylvania as well as in many other states. Some jurisdictions have clear law and others do not. There must be a written contract between the couple and the surrogate.

What are the rights of the surrogate and parents who engage the services of a surrogate?
The law differs in various jurisdictions on this subject. However, there is a bottom line which is clear: If the embryo and the sperm were fertilized in vitro from the biological parents and then implanted into a surrogate, the biological parents will prevail as against a surrogate. The issue becomes more complex when either the sperm and/or the egg is donated by a third party and the surrogate carries the pregnancy. If that third party is known, that person may have rights and obligations. The surrogate in some jurisdictions may prevail. Assuming that the sperm was from a third party and the egg was from the biological mother, there can be an outright custody battle. The law is still developing in this area.

Another area which is developing under the law of the various states is when embryos are frozen and/or sperm is frozen and the couple parts ways, who gets custody of the embryos? Who gets custody of the sperm? Who gets to decide whether the embryos should be destroyed? Who decides if the sperm should be destroyed? Can the prior spouse get custody of the sperm of the other party? Can the sperm donor get custody of the embryos? There are certainly more questions than answers with regard to these issues. Stay tuned.

Are ART (Assisted Reproduction Technologies) contracts valid?
It depends on the state. The Uniform Parenting Act ( UPA) has been adopted in 19 states and provides for the validity of surrogacy contracts and ART contracts. Pennsylvania has just ruled through its Supreme Court that ART contracts are valid.

Certainly, gay couples can explore options such as gay males chosing the mother and using their sperm; gay and unmarried females can now pick the sperm donor and not be restricted to a sperm bank of unknown donors.

What are the different types of visitation?
Visitation is a very different right than partial custody. A parent having partial custody can remove a child from the other parent’s home and take that child to his or her home or to an event. Visitation, on the other hand, can only take place in the home of the primary custodial parent. There is also grandparent visitation which is described in more detail elsewhere. Finally, there is “supervised visitation” where a Court requires a visitation take place, for instance, in the county nursery so that there is an actual sign-in by the visiting parent, supervised visitation in the Court’s nursery, and a sign-out by the visiting parent.

Dorothy K. Phillips & Associates

Family Law FAQs

Adoption and Foster Care

Alimony

Appellate Representation

Custody and Partial Custody

Divorce

Domestic Violence (Protection from Abuse, Child Abuse, Spousal Abuse)

Equitable Distribution (Property) and Buy-Sell Agreements

Estate Planning

Grandparent Rights

The Hague Convention

Paternity

Pensions

Prenuptial and Postnuptial Agreements

Reproductive Rights

Same Sex Unions and Gay Rights

Support (Child Support, Spousal Support and Alimony Pendente Lite / Separate Maintenance)

Surrogacy and ART (Assisted Reproduction Technologies)

Visitation