Tag Archives: custody

by | June 19, 2012 · 3:18 pm

Does New Pre-Birth Paternity Test Begin to Open the Door for Child Support Before Birth of Child?

By Matthew T. Hovey, Esquire

The New York Times printed an article today highlighting a new paternity test that can determine the paternity of an unborn child through a relatively noninvasive blood test. The test raises the question of whether the door is opening for financial support for unborn children. The goal of this article is to review the potential impact of pre-birth paternity tests on child support in Pennsylvania, as well as the rights of a father.

In Pennsylvania, paternity directly creates rights for a father with respect to child support and custody. As a result, its importance cannot be understated. Typically, paternity is agreed upon and not disputed. The reality, however, is that there are times when paternity can be murky. Paternity can be resolved with court intervention, usually through the child support case after the mother files against the putative father or through a legal action for paternity. Once paternity is established the father can file for custody of the child, but he may also become liable for child support. Currently, the obligation to pay support lasts from birth until at least the 18th birthday, as long as the child remains unemancipated.

The consequence is that under the current law, unless the father is known and agrees to provide support, the mother is financially on her own during the pregnancy. She will be solely responsible for the healthcare costs, including hospitalization for the actual birth. Fair or unfair, the law in this area dates back a long, long time and, at least in principal, predates paternity tests. Science is rapidly progressing, however, and a revision of the child support code may be on the horizon. If paternity can now be determined pre-birth, then it may be appropriate to ensure that the father bears the burden of the pregnancy.

Nevertheless, this potential change raises other questions and advocates for this change should consider the ancillary impact. Just as paternity of a born child gives rise to both the obligation to pay support and the benefit of custody, will the obligation of support for an unborn child also give rise to custodial or similar rights? As of now, if the mother wants to have an abortion, the father, legally speaking, is powerless to stop the abortion. Could a legally recognized pre-birth paternity test also open the door to the father having rights during the pregnancy? Could the father obtain a court order to force the mother to take certain vitamins? Or follow certain medical recommendations?

There are no answers to these questions yet, but, because of the rapid evolution of technology, now may be the time to start the conversation. Prince Law Offices wants to hear from you! Please share your thoughts in the comment section below or on our Facebook page.

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by | May 16, 2012 · 11:30 am

Free Knux! — but not in Pennsylvania. Can you file for custody of a pet?

By Matthew T. Hovey, Esquire

A story in the national headlines this week raises the interesting question of whether you can file for custody of a pet in Pennsylvania.  According to msnbc.com, Craig Dershowitz of New York, reportedly, spent over $60,000 in legal fees attempting to gain custody of the dog he shared with his ex-girlfriend, who now lives in California with the dog, Knuckles, a pug/beagle mix.  The case is still pending and Mr. Dershowitz is now fundraising to continue his legal cross-country legal battle, which has allegedly drained his life savings.

Fortunately for Mr. Dershowitz, the case is limited to New York and California and not Pennsylvania.  In Pennsylvania, you cannot file for custody of a pet.  To the shock of most pet lovers, in Pennsylvania, an animal is treated under the law as property, the same as your kitchen table or 401k.  If you are married, the pet would be dealt with by the court during the divorce as part of equitable distribution. If you are dating and break-up with your significant other, you would be limited to general civil actions, which may including an action for replevin.  Your remedies may be limited to money damages, which would likely be based on the retail value of the dog and will not take into consideration sentimental value.

As a result, if you and your spouse/significant other own a pet, the best protection is a written agreement that clarifies ownership and includes a provision for the resolution of any dispute over possession of the pet.  You will want to consider who owns the pet or, if you both own the pet, how is the ownership interest divided between the two of you (e.g., 50/50, 75/25).  Likewise, you will want to consider how any disputes should be resolved (e.g., private mediation, money damages to one party, right of one party to buyout the others interest).

If you and your spouse/significant other own a pet and would like to discuss a written agreement concerning the pet, please contact our office for a free initial consultation.  Our office also handles pet trusts, to provide care for your pet upon your passing, and matters of equine law.  We can be reached at 610-845-3803.

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by | May 15, 2012 · 11:00 am

What is Legal Custody?

By Matthew T. Hovey, Esquire

Many are surprised to learn that in Pennsylvania there are two types of custody: physical and legal.  Physical custody is how the time with the child is divided.  What then is legal custody?

23 Pa.C.S. § 5322 defines legal custody.  ”Legal custody” is defined as “the right to make major decisions on behalf of the child, including but not limited to, medical, religious, and educational decisions.”  As a result, legal custody also grants the individual the access to all relevant documents for the child, including, but not limited to, medical records, report cards, and the ability to attend doctors’ visits and parent/teacher conferences, so that the individual can make informed decisions for the child.

Legal custody can be divided one of two ways: solely or jointly.  Sole legal custody is “the right of one individual to exclusive legal custody of the child.”  Shared legal custody is “the right of more than one individual to legal custody of the child.”

If legal custody is shared and the parties cannot agree on a decision, either party may petition the court for resolution.  For example, if a child requires braces, but one parent refuses to consent, then the party attempting to obtain the braces can file for court intervention.  Typically, the court will conduct a hearing in order to obtain testimony on evidence on the issue, then issue an order resolving the dispute.

If you or a family member require legal representation to help establish, effectuate, or exercise legal custody rights, please contact our office at 610-845-3803 for a free initial consultation.

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by | April 2, 2012 · 12:15 pm

Can the Non-Custodial Parent Ever Claim the Children on Federal Taxes After a Separation or Divorce?

By Matthew T. Hovey, Esquire

It’s tax season again and the April 15th deadline is quickly approaching!  As a result, as a family law attorney, a lot of tax related questions are coming in from my clients.  A common question is: can the non-custodial parent ever claim the children on federal taxes after a separation or divorce?

The answer is yes, with the cooperation of the custodial parent (the parent with 51% or more custody).  If you and the other parent are separated or divorced, then, as long as either of you had primary custody of the child or children for the taxable year and either of you provided a majority of the support for the child or children for the taxable year, the custodial parent can transfer the claim to you, the non-custodial parent.  In order to effectuate the transfer, the custodial parent must execute IRS Form 8332 and you, the non-custodial parent, must attach the signed/executed form to your tax return.

A natural follow-up question is: why would the custodial parent agree to transfer the tax claim?  Often the transfer is part a negotiated property or custody settlement.  If the non-custodial parent is also the primary financial provider, the credit can be very valuable to them.  Additionally, those benefits can be long lasting because the children can be claimed for years and years.  As a result, it becomes a valuable bargaining chip and the custodial parent may find it beneficial to transfer the tax credit to the non-custodial parent in exchange for a larger immediate payment in a property settlement.

Lastly, what tax benefits are gained by claiming the children?  To answer this question, I’d point you an excellent article posted online by Bill Bischoff of the Wall Street Journal: Child-Related Tax Breaks After Divorce.  The article provides a breakdown of the available tax benefits.

If you are currently involved in negotiations for a property or custody settlement, please contact our office at 888-313-0416 to schedule a free initial consultation!

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by | April 30, 2011 · 1:32 pm

Child Custody: I Want Full Custody!

By Matthew T. Hovey, Esquire

Quite often a parent comes in for an initial consultation and expresses the desire to seek “full custody” of his/her child(ren). The term “full custody,” however, means a lot of different things to different people. Even amongst practitioners, terms like “full custody,” “primary custody,” and “visitation” can mean a variety of different configurations. As a result, the recent legislative update to Chapter 23 of the Domestic Relations Code seeks to clarify the meaning of custody terms and achieve uniformity amongst both practitioners and parents alike. The goal of this article is to assist in that goal and articulate the different types and configurations of custody.

(1) At the most basic level, there are two types of custody: legal custody and physical custody. There are defined as follows:

“Legal custody.” The right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions.

“Physical custody.” The actual physical possession and control of a child.

(2) For legal custody, there are two configurations:

“Sole legal custody.” The right of one individual to exclusive legal custody of the child.

“Shared legal custody.” The right of more than one individual to legal custody of the child.

(3) For physical custody, there are more configurations:

“Sole physical custody.” The right of one individual to exclusive physical custody of the child.

“Shared physical custody.” The right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child. Under shared physical custody, time typically shared equally so that in a fourteen day block, each parent will have seven overnights with the child(ren).

“Primary physical custody.” The right to assume physical custody of the child for the majority of time. Primary custody typically ranges from 99% to 51% of the defined custodial time with the child(ren). The counterpart to primary physical custody is partial physical custody.

“Partial physical custody.” The right to assume physical custody of the child for less than a majority of the time. Partial physical custody typically ranges from 49% to 1% of the defined custodial time with the child(ren). The counterpart to partial physical custody is primary physical custody.

“Supervised physical custody.” Custodial time during which an agency or an adult designated by the court or agreed upon by the parties monitors the interaction between the child and the individual with those rights.

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