CHILD CUSTODY - But what if we can’t agree? Ways to resolve legal custody/co-parenting issues.

In light of the fact that the vast majority of parents share the right to make major decisions with regards to their children (as discussed in my last post), it is not uncommon for disputes to arise between them as to what is in the best interest of their child. There are several ways they can go about trying to resolve these issues:

1. Litigation: Right, wrong, or other, a traditional way to “resolve” these disputes has been to run to court. In Allegheny County, there is at least one judge hearing motions pretty much every day of the week—sometimes as many as three. A lot of what fills their dockets is people coming to court because they have not been able to make a decision regarding the upbringing of their child.

To the extent that anyone may be harboring delusions to the contrary, let me be clear: The judge does not care about your child’s soccer participation. They don’t care if they play, they don’t care where they play, and they don’t care how well they play. To the extent that you are paying an attorney hundreds of dollars per hour to go to court to try to convince the judge to care about those things, you are wasting your money.

Does this stop people from going to court about these issues? No, not at all. It is probably half of what the judges have to endure each day they hear motions. However, the court does not wish to micromanage the raising of your children or any of the other legal issues that may arise in the course of your uncoupling. I therefore advise people look into some of the alternatives below.

2. Mediation: As I discussed in a prior post, in mediation in PA each of the parties appear together with the mediator to try to work through issues that they have not been able to resolve between themselves. The focus of mediation can be as broad as all support, asset division and custody issues arising in a divorce, or it can be on an isolated issue, like where a child should go to school. A mediator helps guide the parties to a mutually agreed upon resolution and largely serves to help facilitate a dialogue between the parties to reach an understanding and compromise. What happens in mediation is not, however, binding between the parties and they will need to have a formal agreement drafted by attorneys to confirm any arrangements to which they agree.

3. Collaborative Law: As I have talked about previously, in collaborative law each of the parties hires a collaborative attorney and agrees that they will not pursue litigation at any point in time—otherwise they must remove themselves from the collaborative process and find new counsel. Depending upon the nature of the dispute between the parties, they may require the assistance of a collaborative coach to help facilitate their conversations and ultimate resolution. They may also employ a child specialist to provide input from the children involved or a financial expert if matters relative to money are in play. Again, the topics addressed can be quite broad, involving a wide range of issues attendant to uncoupling or more specific discrete issues. At the end of a collaborative process, with the assistance of their collaborative attorneys, parties will enter into a finalized agreement with regards to their collaborative agreement.

4. Co-parenting Counseling: Sometimes, if the parties are having difficulty reaching agreements with one another or being able to share in their co-parenting responsibilities, the court may refer them to co-parenting counseling. In this arena, the parties work through a therapeutic process with a counselor who has a focus on assisting them in improving their relationship with one another as they go about raising their child together. This can be very helpful for people just starting the uncoupling process, as many of these counselors provide insight to the parties’ communication style and where they have difficulty hearing each other and voicing concerns. Parties can be ordered by the court to co-parent counseling and this will often happen if you show up too many times asking the court to micromanage how you are raising your child.

5. Co-parenting Coordination: This was all the rage a few years ago. Parties who exhibited extreme difficulty in working through their co-parenting issues would be sent to a parenting coordinator, who would hear their minor custody disputes. (Usually this happened after parties tried to use the litigation route too often.) The co-parenting coordinator would have the authority to order the parties to do certain things. The parenting coordinator, in essence, acted like a mini-judge that would hear smaller disputes with regards to activities, exchange times, etc., but could not make major changes to the physical custody schedule or the parties’ legal custody arrangement. However, co-parenting coordination has fallen out of favor with the courts, and judges can no longer order parties to participate in the process. However, there is no prohibition on the parties jointly agreeing to enter into co-parenting coordination together and agreeing to be bound by what decisions the co-parenting coordinator might make if the parties are unable to reach an agreement. Similar to going to court, co-parenting coordination was more an avenue of last resort than a first choice, as needing a third party, be it a judge or a coordinator, to make decisions for you is an indication that there are significant communication problems between the parties.

6. The final and probably the best answer to all this is simply talking to each other. While you may need to speak with an attorney to hear what your rights are or speak with a counselor to understand better how your relationship with your co-parent affects you, the most cost effective, long term, and relatively simple answer is to figure out how to work with each other. Maybe you are better if you only communicate via emails, maybe it’s better if you only communicate via telephone, maybe you should try to minimize your communication as much as you can, but the bottom line here is you have to learn how to communicate with each other and the sooner you can get yourselves to a point where you don’t need third parties to help you do that, the better off you probably are.

As always, if you found this post helpful, please share and feel free to comment with questions or suggestions for future posts.

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DIVORCE Should I Stay or Should I Go Now: A Legislative Update

Some of you may have read my prior blog posts regarding establishing separation and how that can affect your rights to support, custody, equitable distribution, and ultimately, a Decree in Divorce.

As I mentioned in those posts, in Pennsylvania we have what we call a two-year waiting period. What this ends up meaning is if one spouse wants to have a divorce and the other does not, the parties must be living separate and apart for a period of at least two years before the court has the right to issue a Decree in Divorce. For example, here in Allegheny County you cannot even have a meeting with the judge and start talking about the distribution of your assets until that two-year mark has been reached. (Obviously, this is not true in cases where you want to work together to try to reach a resolution, mediate, collaborate, etc. You are free to discuss these issues at any time. This is one of the advantages of pursuing resolution of your matters outside of the court context).

For a very long time, there have been concerns that this two-year waiting period is not necessary, and that it needlessly prolongs the divorce process and otherwise makes things longer, more costly and more difficult for the parties. It should be noted that the separation period used to actually be three years and was moved down to two sometime ago. There has, intermittently over the last several years, been a push to try to reduce the two-year waiting period to a one-year waiting period. A one-year waiting period would be more consistent with many of our neighboring states, some of which require only six months between separation and when the court has the right to enter a Divorce Decree. House Bill 380 was introduced to reduce two-year waiting period down to one.

This legislation was proposed in the House and was approved by the House after which time it moved into the Senate. As of last week, the Bill was approved by the Senate’s judiciary committee, with only one of the fourteen votes being against it.

It is anticipated that the Senate is going to have a full vote on the fate of HB 380 in the near future. Under the terms of the Bill, it would be effective sixty days after its passing. So, the waiting period could be changing soon. The potential of changes to this waiting period may be something you wish to consider, when determining whether or not it is in your best interest to separate at this time.

I will keep you posted as to when this goes to a full vote and may be signed into law. For now, the two-year waiting period remains, but this may not be the case for much longer.

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CHILD CUSTODY - Who's the Boss? An Introduction to Legal Custody

When most people think about custody, they think about where their child is going to be, with whom and at what time.

This first kind of custody that most often comes to mind is what we call physical custody.  It is the actual schedule that dictates with which parent (or grandparent or in loco parentis person) a child will be with at a particular period of time.  The physical custody components may include rules for vacations, holidays, when and where you meet, etc. 

However, as most folks know, there is a whole lot more to raising a child than just showing up somewhere.  That is where we get to the second type of custody that people don’t think about nearly as often. 

This second component is what we call legal custody.  There are a lot of different ways that parties can divvy up the physical custody time with the child: equally shared, shared, primary, partial, visitation, supervised, etc.  These are all terms that have to do with the amount of time a party has with their child.

Shared legal custody is, in some ways, much more simple and, in other ways, much more complicated. 

There are only two answers with shared custody: yes or no.  The answer is going to be “yes, you are sharing legal custody” in about 99.9% of cases.  Unless someone is currently incarcerated or has habitually been just a raging, uncooperative pain in the ass, legal custody is typically shared.

So what is “legal custody,” you ask?

Legal custody is, in essence, decision-making rights.  While you needn’t agree on the most minute of issues with regards to your child (i.e. skim milk or 2% milk?), you are expected to be on the same page for the major, life-altering events such as education, religious upbringing, medical decisions and the like.

 These major decisions tend to trickle down into some smaller ones.  For instance, what type of activities your child will participate in, will they play travel baseball, who is going to be responsible for getting them there, etc.  Some of these smaller decisions, as far as participation in activities, can have major impacts on what your physical schedule looks like. It is very difficult for a child to spend weekend time with one of their parents if weekend time is being eaten up by going out of state for travel sports events.  Deciding to commit your child (and therefore, your-co parent) to these types of activities is part of legal custody.  Neither parent should be making decisions that significantly infringe upon the time spent with the other parent over the other parent’s objection or without their knowledge.

If you are sharing custody, a child’s participation in sports or other activities is likely going to affect both parties’ custody, and they need to be on the same page before anyone starts signing Johnny up for baseball or even talking to him about whether or not he would like to play.   Grownups need to be the ones making the decisions here, and simply because a child says he would like to do something doesn’t mean that is the definitive answer if the other parent is not in agreement.  It’s also not fair to tell your child they can do something before having this sort of conversation with the other parent. 

Similar ideas apply in medical situations. If Johnny is on his way to the ER with one parent, the other parent should be called.  They should know what is going on as it is happening, not days later when you get around to it. Even more routine doctor visits should be discussed between the parties, at least until they work out a system of how those are handled. You probably both don’t need to be standing in the pediatrician’s office for every single well visit, but you ought to be on the same page as to who your child’s doctor is, how to get ahold of them, and when your kid needs to go see them. 

As I have mentioned previously, you can end your relationship with someone as your partner, but you cannot end it as co-parents.  You need to be able work together to address the decision making aspects of raising your child together.  There are some ways to work through these, be it through co-parenting counseling, mediation sessions, or perhaps even voluntary parent coordination.  However, as more and more parents are sharing custody of their children, these legal custody issues are coming into play in front of judges in Motions Court when parties can’t work through disputes.  I can assure you this is not anything that the court likes to see.

In my next post I will discuss how counselling, mediation, or parent coordination can help you work through these issues before you end up in Court.

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DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - PART 3

So how do you show you’re separated, you ask?

Well, what is separation can be very tricky. It is a fact specific determination that is not terribly well defined. The rule is that you “stop living in a husband and wife-like manner.” (The quote is old. This works the same way for same sex couples now that same sex marriages are recognized in PA.)

Whether you “are living in a husband and wife-like manner” is very specific to an individual couple, as you look at how your lives have changed since the alleged separation date. The most important fact, though, is did you both know you were separating? If you move to another state to get your master’s degree, and a year in decide you want a divorce, you didn’t separate when you moved for school because neither one of you knew you were separating at that point. If you have this epiphany a year in, but don’t tell your spouse for another year, guess what, you just now separated (two years after you moved) because you didn’t realize you were separating when you moved there, and while your feelings may have changed a year earlier, you didn’t tell your spouse that until now. Everyone in the relationship must be on notice that the relationship is ending. Notice can be verbal or in writing.

Under law, the date of filing a divorce is a presumptive date of separation, but either party can present evidence they separated earlier or later if things move forward in court. That’s were a written notice of separation can come in handy.

However, actions speak louder than words. If you say “separation” but keep acting like spouses, well, then you might not have separated. The words themselves aren’t magic and the Court will look at what you have been up to since you said them.

Nonetheless, nothing is getting done over one side’s objection until the two year waiting period has been met. If you are thinking about separating from your spouse, I highly recommend that you speak to an attorney to know your rights and obligations in the event of a separation within or outside of the home, and how to go about letting the other side know that you are, in fact, separating.

As I always point out, separation—even the very beginnings of separation—can impact every single aspect of your life, will impact you legally, financially and emotionally.

It is important to get the correct information to know what to expect. Consider speaking with a counselor, either individually or as a couple, before facing these changes. Be sure of your feelings. Once you are sure of your feelings (or at least pretty sure) talk to a lawyer to get some idea of what to expect from separation and/or divorce.

If you found this helpful, please share so that others can, too!

DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW PART 2

SHOULD I STAY OR SHOULD I GO NOW  - PART 2

Separation also affects support.

If you are talking about physically separating, and you are no longer sharing the household expenses, this can trigger a right to support even if a divorce complaint has not been filed. That can include spousal support for a lower wage earner and child support depending upon your respective incomes and custody arrangement. While two parties are still physically in the same home, it is largely assumed that there is not a need for support so long as nobody is being left completely penniless and the bills are getting paid.  When you stop being under the same roof and this stops being the case, you can find yourself facing a complaint for spousal support and/or child support.

It is not necessary to stop living in the same home to establish separation, so you do not necessarily have to move out of your home; therefore, spousal and child support might not be triggered. (But really awkward living arrangements will be.)

Support rights change if someone files for divorce.

Once a divorce gets filed, a party can ask for support even if everyone is still in the same house. Heck, you may have to pay support even if the other side doesn’t need it (i.e. you can get support you don’t even need during the period of separation).  This support for a spouse that comes into play after a divorce is filed but before it is finalized is called alimony pendente lite.

The previously discussed two year separation period can be used for a party to obtain support during separation, and they might not be entitled to it after a divorce (or even during separation).   The support you can receive while you are separated or while a divorce is pending is calculated differently than alimony, the type of support you can receive after divorce.  A party may be able to use the two year period of separation to collect these funds, even if they would be capable of self-support after the divorce and not an alimony candidate.   Additionally, while a party may have had an entitlement issue barring them from receiving spousal support, this doesn’t apply to alimony pendente lite.

So what is an entitlement issue?

This does not refer to someone thinking they are entitled to get everything in this world (though that type of thinking might be a reason to separate). If you haven’t been a faithful spouse, if you abandon or abused your family, or if you aren’t separating for the right reasons, you may be barred from receiving spousal support.     If you physically separate and there is no divorce, a party may not be entitled to the support they need if they don’t have clean hands. If you leave for the wrong reasons, you may be leaving behind your support claim as well.

Separation will also trigger custody issues.

Once you have separated, you can file for custody.  The court can even fashion an order while the two of you are still living under the same house but it will not go into effect until you are living in separate homes.  Whether you are separated in the home or out of the home will play a major role on how often you can see your children.  Continuing to reside in the home likely means seeing your child every day, which is almost guaranteed to be at least twice as much as you will see your children if you move out. 

However, continuing to live with your significant other post-separation is not for everybody. It can present a host of problems like fights about expenses, potential PFA exposure, etc.

If you leave are you really giving up your house?

Most often, yes.  Whether or not someone physically leaves the marital residence can affect equitable distribution in that in most cases the party who continues to reside in the home during separation and pendency of the litigation tends to be the party who receives the home at the time of equitable distribution. 

IF YOU FOUND THIS HELPFUL PLEASE LIKE AND SHARE WITH OTHERS.  IN MY NEXT POST - HOW TO SEPARATE 

DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - Part 1

I mentioned in a blog post earlier this year that the beginning of the New Year tends to bring with it new divorce flings and cases. While the actual filings peak in March of the year, as I write this I am sure there are people who have been contemplating separating from their spouse or who plan on talking with a lawyer in the near future.  Whether or not you separate is a huge decision.

When you separate can have huge ramifications in potential divorce litigation.

When and how you separate, i.e., the day you “stop living in a husband and wife-like manner,” plays a key role in the distribution of your marital estate, entitlement to support, and the entry of the divorce decree. 

Here are a couple of things to think about if you are thinking about going.

The date of separation defines marital property. 

As I talked about in prior posts, during your marriage, the assets you acquire (whether they are in your name, your spouse’s name or in joint names) will be subject to equitable distribution, barring an agreement to the contrary. 

Your date of separation designates when assets stop being marital and start being separate. 

Generally, income you earn after separation is yours to do with as you please, as are any assets you acquire with your post-separation income.  The date of separation is the dividing line between the two.  It can be crucial in whether an asset is included in the marital estate and subject to equitable distribution or not.

The date of separation also helps to determine the value of non-marital assets.  

As I have talked about, only the appreciation in value of non-marital property is subject to equitable distribution.  (Unless you have already transmutated it into marital property.) This marital portion is the growth on the asset from your date of marriage to your date of separation, or to the date of distribution, whichever is less. As such, the date of separation will help determine the value of these non-marital properties as well.

It determines when you can get a Divorce Decree.

The date of separation also starts the clock ticking on when you can get your actual divorce.  If everybody is in agreement that they want a divorce, you still have to wait for a period of 90 days after a Divorce Complaint has been served to request it.  However, if one party does not want a divorce, Pennsylvania has a two year separation waiting period. This means from the time you separate until you can push things ahead in Court, you must wait two years if your spouse objects.   That two years starts not when a divorce complaint is filed but when you separate. 

That’s just the tip of the iceberg. When and how you separate my also affect your support obligations/rights, when you get to see your children, and who retains the marital home when all is said and done. I will cover these topics and “how do you separate?” in my next post.

CIVIL COLLABORATIVE LAW TRAINING

To those of you who have kept an eye on my various blogs over the last few months, I have mentioned my involvement with collaborative law.  

While many folks may be familiar with collaborative law only in the family law context, the principles of collaborative practice can be applied in any one of a number of legal contexts.

In fact, the local collaborative practice group, CLASP, has a civil law committee and they are presenting a civil practice focused, basic collaborative law training on March 17th and 18th. This will focus on the use of collaborative practice in the civil law context, which can include contract disputes, employment issues, resolution of estate claims, and many other non-family law related issues. 

This training counts as the basic training necessary for attorneys looking to join CLASP and can also provide existing CLASP members with further information regarding application of the collaborative process to other areas of law. 

For those who are not familiar with the collaborative process, in essence, all parties involved agree that they do not go to court.  Not only are they agreeing that they do not want to go to court, they actually specifically sign a contract saying they will not.  They hire specially trained attorneys who have agreed to adhere to collaborative guidelines in lieu of running to court over every little upset. 

These collaboratively trained attorneys appreciate and acknowledge the toll that litigation can take on people and the fact that many issues can be resolved more quickly and more efficiently through a cooperative exchange of information and an open dialogue. 

The collaborative attorneys and their clients are assisted in this dialogue by a collaborative coach, a trained mental health professional whose role it is to facilitate a dialogue between the parties, as well as their counsel, with the goal of reaching a resolution that is reasonable and acceptable to everyone involved.  

The agreement to stay out of court is taken so seriously that in the event the collaborative process falls apart, the parties are actually required to find new attorneys if they want to litigate their claims. As a result of this, most collaborative cases stay collaborative and ultimately resolve that way. 

Any attorneys who are interested in learning more about collaborative law should look into the upcoming civil training.  Not only is collaborative law a growing field of practice, but the two-day training provided is a very cost effective means of obtaining a year’s worth of CLE credits in just two days, pending approval.  Please feel free to review the information below,  visit CLASPLAW.ORG  and contact me or other CLASP members for more information about registering.

Two-Day Civil Collaborative Law Training

By: Marc O. Sheridan, Esquire

When:              March 17th & 18th, 

 Time:               Registration/Check-In is at 8:15  a.m.

Thursday and Friday morning. Light continental breakfast provided.

Training begins promptly at 8:30 a.m on Thursday and Friday and the day ends at 5:00 p.m.

Where:            One Mellon Center 500 Grant Street

Third Floor Conference Center Pittsburgh, PA 15219

Cost:               $500 Early Bird before 1/15/2016

$550 after 1/15/2016, $450 for CLASP Members

CLASP is pleased to be offering a Two-Day Civil Collaborative Law Training conducted by Marc O. Sheridan, Esquire, a practicing Litigator, Collaborative Attorney, Mediator  and Collaborative Trainer. For over fifteen years, Attorney Sheridan has represented clients in various employment and civil matters in the New York City area.  He is a member of the New York State   Bar Association ADR Section and Collaborative Practice Committee, the American Bar   Assoc.Dispute Resolution Section, the International Academy of Collaborative Professionals (IACP), and the Global Collaborative Law Council.

Fee Includes course materials, continental breakfast, lunch &  snack.

Pennsylvania CLE credits to be provided, pending  approval.

 Please note: registration will be limited and is available on a first come/first served   basis.

You can also register on-line at  www.clasplaw.org