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When it comes to child custody, maintaining an accurate understanding of the law can be difficult, as it often varies among the counties in Pennsylvania. Here are the top 10 custody myths I have encountered in my practice in Lancaster County:

1. My kids will get to choose which parent they want to live with when they are 12 years old.

I have had countless clients tell me that they assume their children can decide where they want to live when they are 12 years old. This is not an accurate statement of the law but seems to be a common misconception among the general public. The reality is that as children mature and reach their teenage years, their wishes are more likely to be considered by the court, as the law requires courts to consider "the well-reasoned preference of the child, based on the child’s maturity and judgment." However, courts must consider all relevant factors, most importantly what is in the best interest of the child. Simply because a child expresses a desire to live with one parent does not mean that the court will ultimately conclude that the child’s best interest will be served by living with that parent. Other factors that the court must consider include which party is more likely to encourage frequent contact with the other parent, the need for continuity and stability, and whether there are other siblings, among others. There is simply no rule that a child, on his or her 12th birthday, gets to make the decision about which parent to live with.

2. I can move wherever I want and take my children with me.

The Pennsylvania Custody Statute was amended last year to include very specific notice requirements in the event a custodial parent seeks to relocate with the children. Any parent proposing to move to a location "which significantly impairs the ability of a non-relocating party to exercise custodial rights" must provide advance written notice of the proposed relocation to the non-custodial parent. In the event the non-custodial parent objects, the court must hold a Gruber hearing in which the court must consider the following three factors:

  • What is the potential advantage of the move and the likelihood the move will substantially improve the life of the custodial parent and the children?
  • Is the purpose of the move to interfere with the relationship between the non-custodial parent and the child?
  • Is there a realistic alternative custody schedule so the non-custodial parent can continue a relationship with the children?

It is important for parents to understand their legal obligations regarding relocation because if they move without providing the required notice, they may face litigation and other complications which can be difficult on children.

3. The Court never awards fathers primary physical custody of their children.

Although there was a period of time where our Courts were perceived to routinely grant mothers primary physical custody, there has been a trend to allow more shared custody arrangements between parents. This is especially true when the parents live in relative close proximity to each other, reside in the same school district, and are able to co-parent and communicate. There are also cases in which fathers have been granted primary physical custody of their children. Therefore, the assumption that mothers always have primary physical custody of their children is not accurate. Custody cases are determined based on the best interests of the children, and require the Court to consider work schedules, educational issues and whether one parent has acted as the primary caretaker. Each case is unique and there’s no hard and fast rule about mothers being awarded primary physical custody.

Continue Reading Top 10 Custody Myths in Lancaster County

It’s that day again, one of the most difficult holidays for those facing or going through the process of a divorce: Valentine’s Day.

A recent study has revealed a 40% increase in divorce filings around Valentine’s Day in the past two years. For those experiencing the season of upheaval of divorce, the holiday has nothing to do with roses and candy.   Most in this situation have gone beyond asking the question "Is my partner right for me?" and are now asking, "What am I going to do next?" Luckily, for some there is another question to be asked, one that can help alleviate some of the stress of the usual divorce process: is collaborative divorce the right choice for me?

Many divorce clients have described feeling trapped in their situations, as if they have lost control. Court dates and conflict become the new norm, and it seems that their lives and those of their children are at the mercy of the system.

The collaborative process can make some of the toughest parts of divorce a little easier. (See Collaborative Divorce: A Different Way to Divorce). The factors below will help determine if you and your spouse are good candidates for divorce using the collaborative model. If you find yourselves in any one or more of the following categories, you may want to consider moving forward collaboratively:

  • You wish to protect your children and your family from the harmful effects of a high-conflict dispute.
  • You and your spouse will be co-parenting together and want to establish the best co-parenting relationship possible for the future.
  • You value privacy in your personal affairs and do not want the details of your family restructuring to be available on the public court docket.
  • You and your spouse have a circle of friends and family in common that you both want to remain connected to.
  • You value control and autonomous decision-making and do not want to hand over decisions about restructuring your financial or child custody arrangements to a judge. 
  • You understand that conflict resolution involves achieving not only your goals, but finding a way to achieve the reasonable goals of the other person.

Continue Reading Is Collaborative Divorce Right for Me?

When it comes to divorce, there are multiple ways for parties to arrive at an agreement. Occasionally I am asked by clients to review a marital settlement agreement that was reached as a result of a mediation conference. There are also occasions when clients come to an initial meeting with me and ask the difference between mediation and Collaborative Law. Although there is an increasing awareness of both alternatives, it is still common to get elements of the two processes confused. In order to distinguish more clearly between the two, especially for those who may be interested in pursuing either as an alternative route in their divorce, the following is my explanation in a nutshell.

In mediation, an impartial third party, who acts as the mediator, assists the parties with their negotiations and tries to help them settle their dispute. The mediator does not have to be an attorney and cannot act as an advocate for either side or give either party legal advice. In other words, if an agreement contains terms that are grossly unfair to one party, the mediator may not recognize them and, even if he or she does, is not permitted to give legal advice about the issue or any other issue. If both parties have attorneys who are not present at the mediation, they are free to contact them for advice in between mediation sessions. However, when the attorneys are not present during mediation, they are essentially unable to give their clients legal advice throughout the ongoing negotiations. Once an agreement has been reached between the parties, the mediator will typically prepare a draft of it for review and comment by the parties and attorneys before it is signed.

Continue Reading The Difference Between Mediation or Collaborative Law for Resolving Your Divorce

A few weeks ago I watched a program on ABC Primetime called "Divorce Without Separation", about an Arizona couple who chose to live together while they were divorcing. I know some couples choose to live together while they work out the intricacies of their divorce but, in my experience, it is not common. Since I don’t often run into couples who choose to live together during a divorce, I found this show especially interesting to see how this particular couple worked through the divorce process under those circumstances.

The couple chose to use mediation to resolve equitable distribution, support, alimony and custody issues. It appeared that they each retained a lawyer to review the terms of their Postnuptial Agreement and the decisions about how to divide their assets were done with a skilled mediator whose office, interestingly, was situated inside a legal office.

Continue Reading The Collaborative Divorce: A Different Way To Divorce

July 7, 2010

On July 13, 2010, I will again be serving as a faculty member for the Seminar “Landlord Tenant Law; Beyond the Basics”, which will be held in Harrisburg. This is the second year that I have served on the faculty and I am looking forward to interacting with my colleagues and other

On July 13, 2010, I will again be serving as a faculty member for the Seminar “Landlord Tenant Law; Beyond the Basics”, which will be held in Harrisburg. This is the second year that I have served on the faculty and I am looking forward to interacting with my colleagues and other professionals who handle landlord

Meeting with a lawyer for the first time about a divorce can be overwhelming for a number of reasons. Obviously, clients most likely are experiencing emotional trauma over the loss of their relationship and uncertainty about their future. Navigating the legal intricacies of the divorce process adds yet another element of uncertainty to the situation. For a client who is unfamiliar with the legal process, learning about options and discussing ways in which to proceed during the most stressful  time of their life can be confusing. However, it is a critical meeting — one at which the lawyer can assess the client’s situation and priorities, and one at which the client can become comfortable with the lawyer.

Clients often have no idea what to expect from the initial consultation. At the very least, I believe that the client should leave my office that day knowing that he or she has choices, that there is no "one size fits all" method for divorcing, and that I have some understanding of the issues their case will present. In developing an understanding of the issues, it is necessary to have information about the nature of the parties’ marital estate, including their assets and liabilities. It is particularly helpful if clients bring along the following documents when they meet with me for the first time to discuss their divorce:

  • Copies of their most recent Federal Income Tax Return, including W-2s, 1099s and schedules.
  • Copies of recent paystubs.
  • A copy of all recent mortgage and/or home equity loan statements, for all properties owned; if a home is in foreclosure, a copy of the most recent Act 91 Notice.
  • Recent statements for all investment and retirement accounts, including 401(k)s, IRAs and pensions.
  • Recent bank account statements.
  • Annual income statements from the Social Security Administration.
  • Information regarding the value of any business interests.
  • Documentation of loan balances, credit card debts or outstanding medical bills 

Continue Reading Making the most of your Initial Consultation with a Divorce Lawyer

Most divorce cases require the use of outside experts to assist with the valuation of marital assets, including real estate, retirement accounts or a family business. The collaborative process is not any different in that those values still need to be obtained in order to negotiate an appropriate settlement that takes into account the needs

One of the most hotly-contested issues facing Judges in custody cases is whether to allow a custodial parent to relocate to another state with the children. This has become quite common, particularly as people have made and developed relationships through the internet. Relocation cases are difficult for all parties involved: the non-custodial parent is shocked and horrified at the prospect of losing regular contact with his or her children and the prospect of not being able to move to a perceived better opportunity is equally difficult for the custodial parent. Often, these cases are not able to be resolved through the custody conciliation process and they end up at a hearing before a Judge.

My practice is to remind clients involved in all custody litigation, including relocation cases, that the Judge deciding the case is a stranger making decisions about what is in the best interest of your family. He or she has no prior knowledge of your family, you and your ex-partner’s history, your children’s behaviors, likes and dislikes. Depending on your case, it can be helpful or can add to your burden.

Continue Reading Child Custody and Relocation