Judge to Rule on Parents Who Took Son off Cancer Treatment

Jennifer Brandt was a guest on HLN discussing the Florida parents who seek to regain custody of their 4-year-old son after taking him off of chemotherapy.

To listen to Jennifer’s legal take on the story, click here.

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Parents Seeking to Regain Custody After Taking Son off Cancer Treatment

Jennifer Brandt was a guest on Good Day Philadelphia discussing the Florida parents who are seeking to regain custody of their 4-year-old son after taking him off of chemotherapy. They lost custody in May to the child’s grandparents after missing a chemotherapy appointment for the boy, in favor of trying alternative medicine. Watch the video here.

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“Untying the Knot”: Practical Considerations for the Newly Divorced

I was asked recently by a financial advisor in New York, to review and comment on a chart he had put together which was designed to help newly-divorced people in get back on their feet.  The draft document I received covered mostly investment matters, but it got me thinking about all of the practical things people need to think about – and do – when they transition from being a married couple, to being single.  So, in no particular order of importance (in my view, they are all important, or will be at some point) here are some basic things which need to be attended to after a divorce.

Retirement Money Transfers:  Often, a settlement agreement or court decision will call for retirement money to be transferred between parties.  These transfers must be made between retirement accounts in order to avoid taxes and penalties.  Where the account in question is a simple IRA, or a Roth IRA, a call, and a copy of the order or agreement to the fund administrator is usually enough to have the transfer made.  For more complex plans, “qualified plans” as they are known, a Qualified Domestic Relations Order (more commonly known as a QDRO) is needed.  A QDRO is an order, prepared either by an attorney or a pension expert, and presented to the matrimonial judge for signature.  Once signed, the order is forwarded to the plan administrator, and the money is transferred tax free into a retirement account designated by the recipient. Read more ›

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Changes to the Pennsylvania Support Guidelines in Response to the New Tax Law

For the past several decades the “alimony deduction” has been available to all divorcing couples. This deduction provided that the spouse making alimony payments could deduct alimony payments from his or her income and the person receiving alimony would claim these payments as taxable income. However, under the Tax Cuts and Jobs Act of 2017, all support orders entered after January 1, 2019 will no longer qualify for this deduction.

In response to the new tax reality, the Pennsylvania Supreme Court has provided new guidelines under which to calculate support. Under these new guidelines, there are two methods of calculating support, one for orders entered before December 31, 2018 and one for orders entered after January 1, 2019.

Guidelines for Orders Entered Before December 31, 2018

If a support order was entered before December 31, 2018, the old guideline calculation applies. Under this calculation, spousal support/APL is calculated by taking 30 percent of the difference of the parties’ net incomes minus child support, or, if there is no child support order, 40 percent of the difference of the parties’ net incomes. The spousal support/APL figure is calculated after calculating child support. Read more ›

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The Pitfalls of Transferring Assets Into Trust Prior to Divorce

Transferring assets into trust for the benefit of children or others is a common estate planning tool. The party making the transfer into a trust gives up any right to control the property or its distribution.  This also has the effect of removing the property from the marital estate and can significantly lower the amount of money and/or property subject to equitable distribution in the event of a divorce. This becomes problematic when it was done without the knowledge and consent of both parties, and if it was done for a nefarious purpose, such as to deny one spouse their right to share in certain marital assets.

Pennsylvania law provides two main statutory bases to challenge a transfer of property to a trust.  First, Section 3505(e) of the Pennsylvania Divorce Code explains that where a transfer of marital property is made to a third person who paid wholly inadequate consideration for the property, a Court may find that the transfer was fraudulent and declare it to be void.  Transfers to trusts usually do not involve any consideration.  This in itself, can make the transfer within the scope of an attack under Section 3505(e), but the Court is likely to require additional facts suggesting that the transfer was fraudulently made. Read more ›

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Figuring Out Who Gets Fido In A Divorce

A new law in California which goes into effect on January 1, 2019 gives Courts the right to determine custody and care of a pet both pending a divorce and as part of a final determination. This is a move in the right direction given that so many couples consider pets part of the family. Despite this, in many States they are treated as property in divorce.

Both Pennsylvania and New Jersey consider pets as property. In New Jersey, if parties reach an agreement regarding the care and custody of their pet, the Court will enforce it. In Pennsylvania, pets are considered chattel, and the Courts will not enforce provisions of a settlement agreement of the parties regarding the custody of a pet.

The landmark case in New Jersey regarding pet custody is Houseman v. Dare, 405 N.J. Super. 538 (App.Div. 2009). In Houseman, the parties had a long-term relationship and had been engaged to be married. They purchased a dog together and were both registered as the owners. When the couple broke up and the girlfriend vacated the residence, she took the dog and its paraphernalia with her. The parties did not have a written agreement about the dog.

Nonetheless, the ex-girlfriend would bring the dog to ex-boyfriend’s residence for visits. At one point, the ex-girlfriend left the dog with her former boyfriend while she went on vacation. Upon her return, the ex-boyfriend refused to give the dog back to her. A lawsuit ensued.

The Court held that when litigants each demand custody of the family pet, and one party asserts the existence of an oral agreement on that subject, (such as bringing the dog over for visits) it is appropriate to conduct a hearing to determine which party had the greater attachment. This hearing is referred to as a “Houseman hearing.” Additionally, the Court held that pets have a “special ‘subjective value’ to their owners.” Because of that subjective value, the Court analogized pets to property such as “heirlooms, family treasures and works of art that induce a strong sentimental attachment.” Houseman at 543 (quoting Restatement (Second) of Contracts § 360 comment b).

The Houseman v. Dare decision set the following precedent in New Jersey:
1. Pets are still considered personal property, but they have a unique sentimental value that cannot be quantified with a price tag;
2. Pet ownership rulings are based in contract law, not the “best interest of the animal” (in other words, the Court would uphold a pet custody agreement in an Marital Settlement Agreement);
3. New Jersey Courts can issue shared possession orders for family pets.
4. A hearing may be held to determine which party had the greater attachment to the pet if there is an allegation of an oral agreement.

In the case of Mitchell v. Mitchell, 2010 N.J. Super. Unpub. LEXIS 188 (App.Div. 2010) the plaintiff claimed that defendant neglected the cat by not taking him for annual checkups with the veterinarian. The Court held that if a pet is being neglected and has suffered some harm, a litigant may be entitled to relief, such as assuming custody, even if the litigant had previously relinquished custody of the pet.

The seminal case in Pennsylvania regarding pet custody is Desanctis v. Pritchard, 803 A.2d 230 (2002). This case involved a couple who divorced in 2000. During their marriage, Wife purchased the dog (Barney). When the couple divorced, they drafted an agreement that stated that the dog was Wife’s property and that Husband would be entitled to visits. However, shortly thereafter, Wife moved away. Husband filed a complaint seeking shared custody of the dog. Ultimately, this case was heard before the Pennsylvania Supreme Court which held that the agreement was unenforceable as Pennsylvania law considers dogs to be personal property. The Pennsylvania Court said that the husband was seeking an arrangement that was analogous in law, to a visiting schedule for a table or a lamp. Because a pet is considered personal property, it will be lumped into the “equitable distribution” of all property. The Court held that any terms in the Property Settlement Agreement that provided for shared custody or visitation of personal property were void. This has come to be known as the “Barney Rule.”

With the recent change in California law related to pet custody, there will hopefully be nationwide recognition as to how pets are valued in most families. Time will tell if our local laws change as a result.

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Posted in Divorce

New Developments in Grandparent Custody

On July 4, 2018, two amendments to the Pennsylvania child custody laws went into effect making it easier for grandparents and other third parties to seek custody of a minor child. Specifically, Section 5324 and Section 5325(2) of the Pennsylvania Domestic Relation Code, was amended to expand the ability of grandparents and other third parties to assert standing in custody matters.

This legislation was passed as a reaction to the case of D.P. v. G.J.P., 146 A.3d 204 (Pa.2016), which limited grandparent custody rights by holding that grandparents were no longer able to assert standing solely because a child’s parents were separated for a period of at least six months.

After the D.P. decision, a child’s parents would have had to initiate a divorce proceeding in order for the grandparents to seek custody. This prevented many grandparents from seeking custody of their grandchildren. Under the new law, a divorce action is not required. Rather, grandparents may seek custody of a child when an action for custody has already been initiated. Read more ›

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How To Handle A Special Family Event When Going Through A Divorce

This time of year is especially popular for special family events such as weddings, graduations, and bar/bat mitvahs. For families going through a divorce, these events can pose unique challenges. There is no obligation in Pennsylvania or New Jersey that both parties contribute to the cost of these family celebrations. To the extent these events are foreseeable in the near future and a divorce matter is already pending, it may be worthwhile to have the discussion now as to how the cost of these special events will be shared by the parties in the future. Some parties may desire to split such costs evenly, while others may decide to share the cost pursuant to their income percentages at the time of the event in the future. The risk of memorializing the division of such costs when an event is several years away is that a party’s income or financial resources may change unexpectedly in the future. To account for this uncertainty, using the parties’ income percentages at the time the event occurs will take into account any changes in income. If the parties can reach an agreement as to how to divide the cost of these events, these terms can be memorialized in a formal agreement which will save time and energy in the future as the event approaches.

For parties who have been divorced for several years, communication with an ex-spouse may be more amicable. In these cases, the parties may be able to work out an arrangement themselves as to how to pay for an event and how to share the planning responsibilities for the event. Without a binding agreement, however, neither party can be forced to abide by his/her agreement to contribute a certain amount to the event.

For some families, sharing the cost of an event and attending an event with their ex-spouse may not be feasible due to lingering emotions regarding the divorce. In this case, planning separate celebrations may be best for all those involved. Ultimately, the decision should be made with the best interests of the child as the paramount focus. If the parties can manage to put aside their differences for one day and share the celebration with the child, this is often the best result for the child at the center of the event. On the other hand, if having both parties together would only lead to arguments, separate celebrations is preferred. A compromise of these two options is for the parties to attend the actual event together, such as the graduation ceremony, but schedule their own separate celebrations with the child following the event. Regardless of how the event unfolds, it is important to keep the child out of the discussion and never force the child to choose between the parties

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Navigating Pennsylvania’s New Public Access Policy For Family Law Matters

The State of Pennsylvania recently enacted a new public access policy, 204 Pa. Code §213.81, to address the conflict between providing the public online access to Court filings and protecting private information. The new policy restricts public access to personal information and documents.
The confidential information restricted under this policy includes Social Security numbers, financial account numbers, driver license numbers, state identification numbers, minor’s names and birthdays and all personal and employment information of abuse victims. The Pennsylvania Legislature has given each county the option to choose whether to use a cover sheet outlining all confidential information redacted from a pleading or to require the filing of both a “redacted” version and “unredacted” version. Local rules dictate how to file pleadings in each county.
Confidential documents include financial documents, minors’ educational records, medical and/or psychological records, Children and Youth Services’ records, Marital Property Inventory and Pre-Trial Statements, Income and Expense Statements, and Agreements between the parties. All counties require these documents to be filed with a “Confidential Document Form” and will not be accessible to the public.
In addition to information and documents restricted under the new policy, all pleading must contain a “Certification of Compliance” stating that the filing complies with the new requirements.
If these new rules are not followed, the Court may apply sanctions, including costs necessary to prepare a compliant document for filing.
If you have questions on how this new Public Access Policy, affects your case please feel free to contact us.

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Surviving The Holidays While Dealing With Divorce

The holidays are supposed to be a time of good will and cheer. For those going through a divorce, however, the situation is often not cheerful and may even be grim. With some thoughtful planning and the right outlook, however, the joyful spirit of the holidays can be preserved. Following the tips below will set you on the right path for a festive holiday season;

1) Quell The Loneliness By Keeping Your Ultimate Goal In Mind – No one enters into a divorce lightly. Even if you were the person initiating the divorce, there are times when you long for your former life when you and your spouse were happy together. The holidays often exacerbate these emotions and unearth feelings of nostalgia. Nonetheless, it is important to remember why you are going through this process. While it is certainly not easy, you can look forward to a more peaceful and happy existence moving forward;
2) Make Plans and Stick To Them – Going through a divorce sometimes leaves you feeling ostracized from friends and family. If you have children, there will be times during the holiday season that they will be spending time with the other party. Friends who are couples may be reluctant to include you in holiday celebrations for fear of choosing sides. To overcome some of these social issues, it is important to take control of your personal situation. Contact those with whom you would like to spend time during the holidays and make plans. Consider a change of scenery. A quick getaway can boost your morale and take you away from difficult memories. Start a new tradition. Think about what will please you and do it;
3) Stay Within Your Budget – It is easy to get carried away financially during the holidays. However, when going through a divorce it is more important than ever to devise a budget for gift giving, etc and stay within it. Overspending can cause additional and unnecessary stress and strain. Consider gifts that demonstrate how much you care, not how much you can spend.
4) Put Your Kids’ Needs Ahead of Your Own – Thinking about what is truly best for your kids will not only help you successfully navigate the holidays but will also help you overall in your divorce and custody matters. While you may bear ill feelings toward your spouse, keep in mind that this person is also the parent of your children. Don’t interpret the excitement your children have for spending time with the other party and his or her extended family as a slight against you or your family. It is typically a benefit for the children to spend some holiday time with each parent and extended family. Don’t deprive the children of that benefit.

While there may be some rough spots as well as some bright spots, keep in mind that the holidays, like the divorce itself, is merely a temporary situation and you will get through both.

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Posted in Divorce
About Family Law Focus
The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Jennifer A. Brandt, of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases throughout her career. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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