The Do’s And Don’ts Of Summertime Custody

Summertime and the living is easy, that is, except for those involved in a custody dispute. With relaxed schedules, vacations, camp, and changing activities, summertime custody can prove to be more difficult for parties to navigate. Nonetheless, following the do’s and don’ts below can have you sailing smoothly until school begins.

Do notify the other party of your vacation plans. If you want to truly relax and enjoy your vacation time with the children, let the other parent know about where you plan to go as well as a contact number where the children can be reached. While you may not want to share what you believe is private information, most custody orders actually require the sharing of vacation itineraries . Plus, you do not want to put the children in the awkward position of having to hide this information from the other parent or disclose it against your wishes;

Don’t keep the children from enjoying all that summer has to offer. While each parent should be due their fair share of time with the children and should not intentionally infringe on each other’s time, there are often opportunities during the summer for children to enjoy special events such as family reunions, camping trips, beach outings, baseball games, etc. Consider being flexible on the standard custody schedule to allow the children to enjoy these special and sometimes once in a lifetime events.

Do discuss camp plans before you finalize them. Good communication is the key to any successful custody arrangement, and this is no different when deciding on camp. While oftentimes, each party is free to determine where they want to send the kids to camp during their time, it is best when they coordinate to make sure that the children have the most enjoyable and beneficial camp experience(s). It is also important to discuss camp when it will impact the other party’s custody time. For example if one parent has to drop off and one has to pick up, you want to make sure that the camp location and times are convenient for both.

Don’t worry because summer does not last forever. It is true that summer custody schedules often vary from the school year schedule. This is a good thing for the children as often they get to spend extended time with a parent they do not see as frequently during the year, or they may get to travel to exciting destinations with one parent, or visit extended family that they don’t normally see. While it is difficult to be away from the kids for any period of time, each parent needs to think about the changes to the normal custody routine as a chance to reconnect with the kids or spend some quality time away from the kids. The good news is that this change to the schedule is merely temporary, and the normal routine will resume before you know it.

In essence, the rules for summertime custody are no different than the normal guidelines for custody. As long as both parents put the interests of the children first rather than their own self-interest, their custody arrangement will be free from stress and disagreement.

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How To Protect Yourself Before A Divorce

As a divorce lawyer, I have met with countless clients who claim they were blindsided by a divorce. While they may have seen signs that something was wrong in the marriage, they chose to ignore them hoping that things would improve. In some instances, they might have even tried marriage counseling to no avail.

Divorces don’t simply happen overnight. In fact, there is often significant thought and some planning that occurs before one decides to proceed with a divorce. If you suspect that your spouse is contemplating a divorce, there are five steps that you can take to protect yourself.

1) Don’t Hide – If you suspect that your spouse is contemplating a divorce, it is better to know rather than hide from it. Confront him or her. Find out if there is really something wrong or is it truly your imagination. If there are problems, can they be resolved? Would counseling help? If things are as bad as you suspect, it is best to discuss them and possibly come up with a plan to try to part in a way that will cause the least damage to your finances and family;

2) Watch The Money – Become familiar with the location of your finances, understand your expenses and keep an eye on both. If money starts disappearing or spending increases, you need to take action. Ultimately, you may need to create separate bank accounts and/or cancel credit cards where you are the primary cardholder and your spouse has a secondary account.

3) Gather Information – It is easiest to gather the pertinent financial information needed for a divorce before the divorce is proceeding. After a divorce is filed, the filing spouse may remove financial information from the home or hide it away. While you ultimately will have the right to full financial disclosure in the discovery phase of a divorce, you can save some time and money by trying to obtain this relevant information before the case begins;

4) Seek Out Legal Advice – Do not rely on well-meaning family and friends to get the necessary information about the divorce process. Similarly, while there is a lot of helpful general information on the internet, divorce is state specific, so you need to focus on the legal process in the state in which you reside. Thus, it is worth the cost to visit a divorce lawyer for an initial meeting. During this time, you can learn about what the divorce process will look like, specific strategies that may work for you in preparing for a possible divorce, and understanding what you may ultimately receive at the conclusion of the divorce.

5) Build A Support System – Going through a divorce is can be devastating especially when it is unwanted or unplanned. Building a support system to guide you through this difficult process is critical. The support system is comprised not only of a lawyer who you can trust, but should include a therapist with whom you can discuss your feelings, perhaps a trusted accountant or financial adviser, and close friends and family who can provide moral support.

Being prepared for a divorce by following the tips above can make a world of difference when going through the process.

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A New Type Of Divorce Party

Today I was interviewed on television [see clip here] about a new type of divorce party. This is not a situation where a newly single person celebrates their freedom from an unhappy marriage, rather, this new type of divorce party has the divorcing couple celebrating the end of their marriage together.

It seems counterintuitive that parties who could not stay married would throw a party together to mark the end of their relationship. Yet, the premise behind this idea is a good one. That is that the couple is showing their children and friends, that while they no longer want to be married to each other, it does not mean that they are closing off or terminating all of their other relationships.

For the divorcing couple’s children, a divorce party gives them a glimpse into how future celebrations for holidays, graduations, weddings, etc. just might play out. It shows that the couple can still have fun together and join together with their family. This behavior can lessen the tension that children may otherwise face when considering how their lives may or may not change in the future.

Frequently, when couples divorce, their friends are alienated altogether or feel as if they must choose sides. When a couple jointly celebrates the end of their divorce, it demonstrates to friends that they are free to carry on their relationships with the couple without bad feelings. Although friends may not see the couple together at future events, there is no need to sneak around, they are free to be openly friendly to either party or both.

Given the animosity between couples that often leads to divorce and carries on through the process of divorce, it is unlikely that most couples will choose to celebrate the end of their marriage together. Nonetheless, the concepts behind this new type of divorce party, that is, showing enough maturity to put your children first and showing friends that relationships can still be maintained, should be considered paramount as the former married couple determines a new normal and learns how to coexist in a different way.

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Why Having A “Gifted” Child In NJ May Cost You More Child Support

The benefits of enrolling children in extracurricular activities are endless. Not only do they learn how to play a sport or musical instrument, but also soft skills and valuable life lessons, such as teamwork, the importance of practice and how to handle loss and disappointment. Thus it is not uncommon for kids today to participate in a variety of extra-curricular activities, ranging from athletics and arts, to educational pursuits. Of course, with each additional activity, comes the added expense of not only participating in the activity but the time and cost of allowing a child to perfect his or her talents, including transportation, equipment, private tutoring or lessons. The list is endless. Not surprisingly, the issue over who will be responsible for funding these additional activities can become quite contentious for divorced couples, especially when the parties disagree over which activities are“worth” pursuing over others.

Traditionally, a non-custodial parent will not be required to pay additional child support for a child’s extra-curricular activities because the basic child support award under the New Jersey Child Support Guidelines takes these costs into account when child support is calculated. Notably, the basic child support award under the New Jersey Child Support Guidelines includes expenses for “housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250.00 per child per year, and miscellaneous items.” Pressler, N.J. Court Rules, Comment 8 on Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016). Entertainment expenses are defined as “fees, memberships and admissions to sports, recreational or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.”

Nonetheless, the Appendix permits that “because some child-related expenses represent large or variable expenditures . . . it is not appropriate to include them in basic child support awards.” Pressler, N.J. Court Rules, Comment 9 on Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016). In other words, there may be scenarios where there are specific expenses that are both predictable and recurring, which might be approved by the Court and not included in the basic child support award to assist in the “special needs” of gifted children.

But how does one measure giftedness? Must a child show that they are the next Michael Phelps or Misty Copeland, or might it be sufficient for a child to simply stand out as the “star” athlete, actor or student in their local community to qualify for additional support beyond that of the guidelines?

Until recently, there was little by way of case law which helped to identify and define what might constitute a “gifted” child. Of course every parent thinks their child is extraordinary but what happens when a Court is left to define whether a child is “gifted” or skilled enough to possibly warrant one parent paying more in his or her child support? Certainly when it comes to athletics, measuring a child’s talent and strengths is a fairly easy, objective task. However, when it comes to more subjective activities, such as the arts, including acting and painting for example, beauty truly is in the eye of the beholder.

In the recently published opinion of P.S. vs. J.S., Judge Jones of Ocean County took to offering further explanation and guidance as to how New Jersey Courts might define a child’s “giftedness” in circumstances where the non-custodial parent, or parent of alternate residence, might be required to pay additional support.

In P.S., the parties’ daughter, whom the Court fictitiously named “Julie”, was heavily involved in theater and acting. The parties did not disagree over their desire to foster her pursuits, however the question at issue was whether the child was “gifted” to warrant an award beyond the father’s basic child support amount. The father argued that the costs to support Julie’s acting were covered under his basic child support obligation.

Judge Jones addressed how Appendix IX-A (discussed above), typically accounts for extra-curricular activities, consistent with the father’s argument. He then however, went on to confirm that Comment 9(d) of the Guidelines, allows for the Court to “add supplemental funds to guideline-level support to help defray expenses for the development and special needs of a “gifted” child.” The idea being that if a Court “…deems a child to be “gifted” regarding a particular field or discipline, then it may be financially fair, equitable and appropriate for a court, upon application of a parent, to add a reasonable additional earmarked stipend onto both parents’ basic support obligation to help defray the costs of developing, enhancing and encouraging growth of the child’s giftedness in a specific area.”

Which brings us to the crux of the case: how does one measure “giftedness”? Judge Jones noted the difficulty in engaging in such an exercise, explaining that “the term “gifted” is arguably vague, broad, and left undefined in the Guidelines.” As to Julie’s case specifically and her fundamental interests in acting, Judge Jones reasoned that there was no other way for a Court to determine whether someone was “gifted” in acting, other than by way of subjective opinion, which “is simply not a reliable point of focus”. In other words, a Court could not be expected to engage in the task of watching every child act in a school play to determine whether a child is gifted, nor would the Court’s opinion be any more or less valid than the next person’s.

Instead, Judge Jones offered a different approach, commenting that “giftedness does not solely and exclusively apply only to one’s inborn talents or untapped natural skills, but also to one’s self-discipline, ability and willingness to commit and work hard and diligently towards a specific goal. Drive can itself be a gift. A person may be blessed with all kinds of natural talent and abilities in a particular discipline or field. If, however, he or she is unmotivated or unwilling to exert the necessary discipline and perseverance necessary to truly develop and advance such skills, then the person may not truly be truly gifted at all, but simply another individual with a squandered and wasted potential.” What seemed to sway Judge Jones in ultimately concluding that Julie was gifted, was the fact that he had interviewed her twice in the course of two years, and during both interviews she demonstrated enthusiasm, excitement and passion for her love of acting and was able to articulate her dedication and commitment at fostering her talents.

Just because a child is “gifted” however, does not mean Courts should look to the non-custodial parent as an endless checkbook to fund the child’s talents. Rather, Judge Jones cautions that a child’s giftedness and the non-custodial parent’s requirement to contribute additional funds must be weighed against both parents’ financial ability to contribute, specifically noting that the added obligation “…must be reasonable as relating to the parties’ financial circumstances and budgets. For this very reason, there is often a practical logic to placing a reasonable annual cap on such expenditures, rather than authorizing same on an open-ended basis.”

So what’s the takeaway from P.S. v. J.S.? The case of “Julie” is just one scenario and filled with its own unique set of facts, suggesting as previously, that determining when and under what circumstances a court might be inclined to deviate from the child support guidelines, occurs on a case by case basis. At a minimum, the case has opened a new set of avenues (and challenges) for measuring “giftedness”, offering that pure, genuine, objective talent might not always be required when defining what constitutes a “gifted” child. Regardless of how a court makes this determination, if a child is deemed “gifted”, the chances of paying an amount of support above and beyond the guidelines seems likely.

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What We Can Learn From the Brangelina Divorce

Today  I was asked to comment on television about the hottest news, the Brangelina divorce.  If you haven’t heard, another celebrity couple, Brad Pitt and Angelina Jolie are divorcing after 2 years of marriage and twelve years of living together prior to that.  They have six children together.

One of the major issues being discussed is Angelina Jolie’s request that she be awarded sole physical custody of the children with merely visitation being offered to Brad Pitt.  This is a highly unusual request in this day and age where most States recognize that both parents play an integral role in raising children, and while there is not always a stated presumption of equally shared custody for parents, there is definitely a move by most Courts to assuring that both parents are regularly involved in their children’s lives.  To limit a parent’s physical custody to merely visitation — which can mean a whole host of things – including infrequent time, no overnight time, even supervised time – there usually has to be a demonstration that more time with that parent would not be in the children’s best interests.  This can be due to misbehavior on the part of the parent that would be detrimental to the children or unavailability to provide the regular care for the children.  We do not know the specifics behind the claim being made here, but it will undoubtedly be talked about in the weeks to come.

Oftentimes, when a divorce is filed, parties make strong assertions that eventually are negotiated to a point where all parties are satisfied.  This is frequently the best course of action, not only in celebrity matters but all matters.  It is costly, both emotionally and financially to put sensitive issues such as custody in the hands of the Courts.  With the assistance of competent counsel, parties can usually arrive at a settlement that works for everyone, especially the children.  This is true in even the most contentious cases.  We will soon see whether it is the result in this one.

 

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Jurisdiction Over Out-Of-State Property In A Multi-State Divorce

 

In our increasingly mobile society, it is not uncommon for couples to relocate numerous times throughout their marriage and acquire property and assets in different states.  When a divorce dissolves the marriage and forces a distribution of assets spread across various states, the Court in the state where the parties reside at the time of their divorce does not have the legal authority to issue a ruling over the property located in another state.  This legal authority, known as“in rem jurisdiction” applies to property located within that particular state as opposed to property located in another state.

In a divorce matter, Courts are able to circumvent the lack of “in rem” jurisdiction over the out of state property by utilizing the Court’s jurisdiction over the parties instead (known as “in personum” jurisdiction). In other words, while the Court lacks jurisdiction to enter an Order as to the property itself, the Court can enter an order directing a person to divide the property in a certain way, regardless of where the property is located.

In personam jurisdiction only applies, of course, in a divorce matter where the Court has personal jurisdiction over both parties.  A situation can thus arise where one party files for divorce in a state where he/she is currently residing, but where the other party has never resided or has not had any contact with that particular state.  For example, the parties reside in New York for the entirety of the marriage. The parties separate, and Husband moves to Connecticut and Wife moves to Pennsylvania.  After establishing residency and jurisdiction in Pennsylvania, Wife files for divorce.  While Wife does have the right to file for divorce in Pennsylvania and the Court does have jurisdiction over the divorce, the Court does not have in personam jurisdiction over Husband and thus does not have the ability to enter an Order directing Husband to distribute property in a certain way.

In order to acquire personal jurisdiction over Husband, Husband would have to be present in Pennsylvania at the time process was served, would have to consent to the jurisdiction of Pennsylvania, or would have to have sufficient minimum contacts with Pennsylvania to support the exercise of in personam jurisdiction.  If personal jurisdiction is not established, the situation gives rise to what is known as a “divisible divorce.”  Under this concept, which was established by the United States Supreme Court in a series of decisions in 1948, a state can go as far as entering a Divorce Decree but cannot divide the assets or enter an Order pertaining to alimony/support.

A divisible divorce can be expensive and time consuming, as the party initiating the matter would then have to pursue a second litigation in a different state in order to divide the marital assets and determine alimony/support.  A divisible divorce can also be costly for the out-of-state party who will likely have to engage in litigation in the state where the divorce is initially filed in order to challenge the jurisdiction issue.  As the Supreme Court of New Jersey noted about the divisible divorce scenario in Kram v. Kram “we are not happy about this scene, but we have no solution better than the “divisible” divorce concept evolved by the United States Supreme Court.” 52 N.J. 545 (1968).

In light of the possible jurisdiction issues in divorce, it is important to know which state has jurisdiction over all aspects of the divorce before the complaint is filed to ensure the matter is pursued in the proper location.  While the divorce itself can be finalized rather quickly in a divisible divorce situation compared to the more complicated litigation that often arises with the division of a marital estate, the estate must be divided at some point, and it is therefore best to know from the start which state has jurisdiction over the property and the parties to avoid separate litigation in multiple states.

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Making The Divorce Process Easier For Victims Of Spousal Abuse

Pennsylvania allows parties to a divorce action to seek both no-fault and fault divorces. While fault remains available, the overwhelming majority of divorces are granted under no-fault grounds. The statutory framework for no-fault grounds for divorce are contained in 23 Pa.C.S. §3301(c) – mutual consent and §3301(d) – 2 year separation.

Grounds for divorce can be established under §3301(c) “where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of the action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.”

On April 21, 2016, Governor Wolf signed House Bill 12 of 2015 which is designed to accelerate the establishment of grounds for divorce under §3301(c) in cases where one spouse has committed a “personal injury crime” against the other spouse. “Personal injury crimes” include the following: criminal homicide, assault, kidnapping, human trafficking, sexual offense, arson, robbery, victim/witness intimidation, homicide by vehicle and accident causing death or personal injury to the other spouse. These amendments will become law on or about June 20, 2016.

Essentially, the enactment of this legislation allows the victim spouse to establish divorce grounds under §3301(c) based on the “presumed” consent from the convicted spouse, whether they sign an affidavit or not. It is important to note that a spouse must be convicted of one of the enumerated offenses before their consent will be “presumed.”

While the legislation is certainly well intended and meant to assist those spouses who are the unfortunate victims of abuse and “personal injury crimes,” it is questionable as to whether it will achieve its intended result. For example, if the crime results in death to the victim spouse, a divorce at that point seems irrelevant. In addition, with the length of time criminal proceedings take for some of the crimes enumerated above, it is possible that grounds may be established by other means, especially in light of pending litigation which would lower the statutorily required waiting time to establish grounds under §3301(d) from two years to one year. Finally, there are fault grounds which would deal with these types of circumstances, although there are a whole other slew of additional issues created when a party seeks a fault based divorce.

While the question of how beneficial the “presumed consent” portion of this legislation will be is still in the air, there is an important additional aspect of the amendments that cannot be overlooked. Victim spouses, who have been granted an order for protection from abuse or are the victim of a “personal injury crime,” who might otherwise be subjected to attend three marital counseling sessions at the request of their spouse, will no longer be required to do so because of the amendments

It will be interesting to see how this law will ultimately be interpreted and its impact to those subjected to abuse or “personal injury crimes.”

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Truths and Myths About Divorce Mediation

shutterstock_134380532When clients visit my office for an initial consultation about their impending divorce, they invariably ask about the benefits and pitfalls of mediation.  Over the last several years, the use of alternate dispute resolution in divorce and other litigation matters has increased in popularity.  This is due to the widespread belief that staying out of Court is a cheaper and faster way to resolve most legal disputes.  While this is generally true and while mediation may help parties reach that goal, it is not the answer in all situations.  Let’s examine some of the myths and truths about mediation:

1)      Mediation Will Save Me Money – While it is true that the cost of bringing a divorce case to trial can be quite expensive, attending mediation is not always a cheaper alternative.  In a mediation setting, the parties pay a mediator a designated hourly rate.  Depending upon the number of sessions that the parties meet with the mediator and hours that the mediator spends reviewing their case and/or drafting a settlement agreement will determine the ultimate cost.  In addition, parties are also advised to hire their own independent lawyers to review any proposed agreement arising out of mediation on each party’s behalf which is another cost.  Moreover, if the mediation proves unsuccessful, the parties are back at square one, facing possible litigation, after having already spent the cost of mediation;

2)      Mediation Will Get My Divorce Resolved Faster – Many clients believe that mediation is the key to a quick resolution of their divorce.  This is certainly true if both parties are amicable, there is minimal property to divide and both are like-minded in what constitutes a fair division of that property.  In fact, if these factors exist, mediation is not even necessary – the parties can resolve their issues directly with the limited assistance of counsel.  In most instances, however, parties are not like-minded (which is why they are divorcing in the first place), do not have minimal property issues and are not amicable.  This is not to say that most divorces will not resolve – they usually do by mediation or by settlement at some other point – just that going to mediation alone, will not in itself speed up the process and in some instances can slow it down if it proves unsuccessful;

3)      Mediation Is A Less Adversarial Way To Get Divorced – The idea that mediation is a gentler, less adversarial way of getting divorced is true.  That is, if it works.  Again, if both parties are committed to the mediation process and determined to resolve their divorce in this manner, they have a greater chance of success than those who believe that mediation alone will make them gentler and less adversarial. Those who think that mediation in and of itself will make the differences that caused the breakdown of the marriage magically disappear and will allow the parties to agree to a distribution of assets for the greater good of the family are often sorely disappointed.  Mediation by its nature requires parties to agree in order to work and if they are not able to agree, then mediation is not the answer;

4)      The Mediator Replaces The Judge– Some clients have the false notion that the mediator essentially operates as a private judge and will make decisions for them to resolve their divorce.  This is not true.  Binding arbitration is a type of alternate dispute resolution where parties agree to submit their case to the arbitrator to decide their issues.  It is not the same as mediation.  In mediation, the mediator acts as a facilitator to help parties reach an agreement.  The mediator does not “decide” the case for the parties, and in fact, should remain neutral in helping parties reach agreement.  The potential problem is that if parties do not agree, the mediation does not succeed.

5)      Mediation Helped My Friend So It Will Help Me – One of the most difficult questions that clients pose is why some tool like mediation could help a friend, relative, etc. and not help them.  Clearly, it is understandable how someone would want a simple solution to their divorce that worked for someone else they know.  However, as I routinely explain to clients, each divorce case is unique and must be evaluated on its individual merits.  There is no one-size-fits-all resolution to divorce cases.  Parties are wise to review their options with counsel and take the path that seems right for them – even though it may differ from that of their friend, neighbor or relative.

It is certainly beneficial that clients have a wide variety of choices in trying to resolve their divorce, mediation being one of them.  This takes pressure off the over-burdened Court system and gives parties a modicum of control in a situation where they often feel so out-of-control.  However, before embarking on the mediation path, it is critical that parties fully understand the process and the chances of success in their particular situation.  Hopefully the tips above will at least give parties some issues to consider before moving forward.  What is most important to keep in mind is that most divorces do resolve at some point with or without mediation.  Getting wise counsel in helping to navigate the system and decide what path right for you in your matter is most critical in saving time, money and aggravation

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What Can Be Learned From Madonna’s Custody Battle

Pop icon Madonna is facing a difficult battle concerning custody of her 15 year-old son, Rocco.  While the divorce agreement she entered into with Guy Ritchie about eight years ago, awarded her custody of Rocco, it appears that he now prefers to remain with his Father in London.  Recently, he even blocked Madonna from his Instagram account while allowing his Father access.   This made headline news.

What Madonna is facing is difficult for any parent to imagine.  But this situation is not something only celebrities face.  In fact, as a family lawyer, I see that in many instances when children become teenagers, custody arrangements must also be modified.  And when clients come to me looking to initiate a custody action concerning teenagers, I try to deter them mostly because even if a Court rules in their favor, it is nearly impossible to make a teenager do what he or she doesn’t want to do.

Now, when we discuss the factors determining custody, we always look to the best interest of the children.  And the child’s preference usually plays only a small role in making that determination.  In fact, most Courts do not even want to involve the child in the custody process when they are younger.  However, when a child becomes a teenager, his or her preference for where he or she wants to live and spend their time carries much more weight.  Certainly, a Court will encourage the teen to spend as much time as possible with each parent because that is usually deemed to be what is in their best interests.  Nonetheless, I have personally seen many situations like Madonna’s where a child can be primarily raised by one parent and when he or she becomes a teen, they want to live with the other parent.

There are many reasons why a teen may decide to live with one parent over the other.  First, it may be that they prefer to be with the parent of the same gender who can more easily identify with the trial and tribulations of becoming an adult man or woman.  Second, it may be that the rules at one parent’s home are more lax than at the other’s home.  It may be that the teen is trying to play one parent against the other.  This is particularly effective for the teen when the parents are at odds.  And sometimes, the teen chooses to live with one parent because he or she makes the teen feel guilty or pressures the teen in some way.

From my experience, if parents can try to set aside their differences and come together to raise their teenager with a united front, this is usually the best outcome for the teen.  If the teen sees that both parents are on the same page with decision making and rules, there is less ability for the teen to manipulate the situation. Finally, if the teen knows that he or she has the support and love of both parents no matter what, then the teen will feel free to spend time with each parent without recourse.

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Contracts Are Considered When Using Assisted Reproduction Technology

Two recent decisions highlight the importance of contracts between parties in cases involving assisted reproduction technology (ART).  In Pennsylvania, the Superior Court found that television personality, Sherri Shepherd was indeed the legal mother of a child born in a surrogacy arrangement.  For the full story click here.   Basically, Shepherd and her then husband, Lamar Sally entered into a contract with a gestational carrier to bear a child for them.  During the pregnancy, the couple began having marital problems, and Shepherd did not want to sign the necessary paperwork to be named on the birth certificate of the child.  The Court, nonetheless, enforced the gestational carrier contract where both Shepherd and Sally were named as the intended parents of the child and found that they were the legal parents of the child.

A case coming out of California gave further guidance on the issue of preserving frozen embryos when parties divorce.  For the full story click here.   Basically, as in many contracts signed at fertility clinics when parties decide to preserve embryos, here the parties agreed that their frozen embryos be destroyed in the event they divorced.  Despite this agreement, the Wife asked that the Judge disregard it.  She appealed to the Judge’s humanity in making a plea to save the embryos.  Basically, she asked to Judge to ignore the contract and consider the compelling facts of the matter in making a determination.  Specifically, the Wife wanted the Judge to understand that she was infertile having been rendered so by breast cancer.  She was also 46 years old.  Despite the Judge’s sympathy for the Wife, she decided to uphold the terms of the parties’ contract and direct that the frozen embryos be destroyed. While she did not deny that Wife had the right to procreate, she refused to force Husband into unwanted parenthood.

These two recent decisions highlight the importance of taking contracts seriously when parties enter into ART arrangements.  While most parties who are utilizing assisted reproduction technology are primarily focused on creating children when they enter into such agreements, they must consider all permutations arising from the creation of these children, including the fact that they may not remain together as a couple in the future.  Thus, it is important to plan accordingly.  As we have seen, Courts are increasingly likely to look at these contracts in deciding future disputes between the parties.

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Posted in Custody
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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