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Family Lawyer Pennsylvania Family Lawyer VOLUME 39 ISSUE NO. 1 MARCH/APRIL 2017 THE CONSTITUTION AND BEST IN THIS ISSUE INTERESTS: A STUDY IN CONFLICT FROM THE CHAIR ..........................................1 FROM THE EDITOR ........................................3 By Mark R. Ashton, Esq. ARTICLES: [email protected] Community Service Proves Effective Tool for Collection of Child Support ...............................6 I recently at- rights secured by the federal and state con- tended a seminar stitution. Surviving Spouse Forfeits Intestate Share Due to produced by In an ironic twist, the Pennsylvania Extramarital Affairs ...........................................8 the Family Law Divorce Code enacted in 1980 begins by Article for Judges, Lawyers and Psychologists Section on the role telling us that the family is the basic unit Groups: Parenting Plan Form .........................10 of psychological of our society, the preservation of which “No, I Don’t Want to be CC’ed On All of Your evaluations in is a paramount concern. 23 Pa. C.S. 3102. Email” Tools To Simplify Client Communication ................................................23 the context of Add to that the definition of what consti- custody proceed- tutes “family” has evolved more in the The Custody Case Where Everything Went Wrong ...............................................................23 Mark R. Ashton ings. The seminar past 35 years than in the millennium that participants prop- precedes it. The legislators who passed the Step Parents Stepping Up to Pay erly focused attention upon issues using 1980 Divorce Code contemplated what Child Support ...................................................26 the ubiquitous “best interests” analysis we will call the “Biblical Family.” It was a Does Empathy Guide or Hinder referenced in nearly every Pennsylvania simple definition; man, woman, child. The Moral Action? ..................................................27 appellate decision rendered in the last half doctrine of in loco parentis did exist even Doggone It! Court Cannot Condone Canine century. Yet, while nearly every case refer- then, but these cases were exceedingly Custody ............................................................28 ences that standard, the “standard” has to rare. FEDERAL/MILITARY CORNER: be viewed through the oculus of individual Meanwhile the United State Supreme Congress Overrides Smith Rule for Military Court has a long history of celebrating Pension Division ..............................................29 Mark R. Ashton is a Partner in the Exton “family” without really defining it. And office of Fox Rothschild LLP, Chair of LEGISLATIVE UPDATE ................................32 beginning with a 1972 case, Stanley v. the PBA Family Law Section, Co-Editor, BAR REVEW ..................................................34 Illinois, that court also expanded “family” Pennsylvania Family Lawyer, Member, to include fathers who had not married GETING TO KNOW ONE OF OUR MEM- Chester County Bar Association (for- BERS — JESSICA PRITCHARD ...................35 women with whom they had sired a child. mer Chair, Domestic Relations Section), In Stanley, a man fathered three children ABA FAMILY LAW QUATERLY INDICES ..36 Montgomery Bar Association (former with a woman during an 18-year intermit- PBA FAMILY LAW SECTION NOMINATING Director) and member, Board of Directors, tent relationship. When the mother died, COMMITTEE REPORT ..................................55 Historic Yellow Springs (President, Illinois seized the children and asserted 2009-11), [email protected], 610-458-4942 (continued on page 2) MARCH/APRIL 2017 1 THE CONSTITUTION AND BEST INTERESTS must be compelling to overcome parental discretion. (continued from page 1) In D.P. and B.P. v. G.J.P. and A.P. the defendants were natural parents who had been separated for more than six months. Under that Peter Stanley had no rights to children by a woman he had the grandparent visitation statute, the grandparents sued for cus- never married. In a 3-2 decision, the U.S. Supreme Court held todial time. The natural parents may not have agreed on much, that his marital status was immaterial to his parental rights and but they were agreed that these grandparents had no place in the reversed Illinois law. In that case, Justice Byron White wrote, management of their childrens’ affairs. The Westmoreland County “The right to conceive and raise one’s children have been deemed trial court read Troxell to say that Pennsylvania had no special ‘essential,’ ‘basic’ and ‘far more precious’ . than property interest to justify reversing the jointly made decision of the natural rights.” See Meyer v. Nebraska, 262 U.S. 390 (1923); Skinner parents. The Supreme Court affirmed. The special challenge of v. Oklahoma, 316 U.S. 541 ((1942); May v. Anderson, 316 U.S. this case was that the parents joined in wanting to deny the one set 533,535 (1953). In 1944 Prince v. Massachusetts, the court wrote of grandparents any right of access. That is not a frequent event. that the “state can neither supply nor hinder….” the function Meanwhile, just a few days earlier, the Supreme Court had and freedom of parents to “care and nurture their child.” 312 ruled in Adoption of M.R.D. & T.M.D. 26 MAP 2016. In this case, US. 157,166. This language was employed to inform the Illinois a father who had not seen his children in several years decided to Supreme Court that a parent cannot be denied the right to raise a file for partial custody in Lycoming County. Mother was living in child merely because two parents elected not to formalize their and around her parent’s home in Pennsylvania. When Father filed relationship. 405 U.S. 652 citing Levy v. Louisiana 391 U.S. 68 his action, Mother and her father (“Grandfather”) filed an action (1968). As the plurality puts it, Illinois defeats its own purpose seeking to terminate Father’s parental rights based upon an ap- of promoting family when it allows a child to be taken from an plication by Grandfather to adopt these same children. The facts otherwise competent father based purely upon his marital status.” as found by the Supreme Court demonstrated that Grandfather If Peter Stanley was a competent parent, the state’s interest in the had, in many respects, functioned in loco parentis during Father’s matter was de minimis. 405 U.S. 658 lengthy absence. But Justice Todd found the adoption statute The earliest of these cases, Meyer v. Nebraska, involved a premised upon the expectation that adoption would forge a new state law prohibiting the teaching or use of foreign languages. family not a try to form a contorted family formed principally to Robert Meyer was convicted of teaching students using the thwart the sudden appearance of a long-missing natural parent. German language in a private school. Justice McReynolds wrote Just this past month on February 10, we have the reported that the due process clause denotes not merely restrictions on Superior Court decision in M.G. v. L.D., a legal standing case that physical restraint but the right of the individual to marry, establish covers the planet with unusual but easily duplicated facts. Two a home and bring up children consistent with the “orderly pursuit women in a long-term relationship decide to adopt each other’s of happiness by free men.” The student’s parents had the right to child. The relationship between the adults later erodes and after engage the teacher to teach in such language as the teacher and some agreed custody orders, one parent shoots the other in the parents agree without state interference. Meyer is considered one presence of the children. There is evidence that prior to the gun- of the prime cases giving birth to substantive due process that fire, there was high conflict between the children themselves and today forms the framework upon which cases like Obergefell v. at least of parent and one child. The shooting and arrest of one Hodges 576 U.S. ___ and Lawrence v. Texas, 539 U.S. 558 (2003) parent for that act prompts the shooter’s father to file for partial are rooted. and primary custody using the two relevant statutes. On a primary In 2000 the U.S. Supreme Court published Troxell v. custody basis, Grandfather asserts that the children lack parental Granville, 530 U.S. 57. The state of Washington had adopted a control and that the children are physically altercating in ways that law granting almost anyone standing to seek custodial rights over demand legal protection. The trial court rejects what amounted to minor children with the courts to employ a best-interest standard. a neglect theory and also denies any partial custody based mostly In a 4-3-2 decision with Souter and Thomas concurring, Justice upon the perception that Grandfather is a harmful influence be- O’Connor wrote that custody and control of one’s child was per- cause he continues to believe that his daughter did not provoke haps the oldest fundamental right of constitutional law. Troxell the shooting even though she was the triggerwoman. The Superior gave birth to the September 9 decision authored by Chief Justice Court disapproves of the theory and the “scant” evidence for the Saylor holding that a statute conferring partial custody rights to Montgomery County trial court to build a more substantial record grandparents could not survive the agreed position of the natu- of whether the shooter mother or her father really present a danger ral parents that the grandparents were not seeing their children. to the physical or emotional well-being of the 12-year-old daugh- D.P. and B.P. vs. G.J.P. and A.P. Concurring/dissents by Justices ter. Is this in derogation of Troxell principles? We shall see as Baer and Wecht hinted that the remaining portions of 23 Pa.C.S. Grandfather’s request for partial custody was denied. 2325 might not survive constitutional challenge because “special The other standing case of a different stripe from 2016 was weight” must be afforded to a parent’s custodial decision about the February decision in M.L.
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