Custody law allows requests for mental evaluations

The child custody case of an armed man who barricaded himself in his Lehigh County home in a seven-hour standoff with police offers an extreme example of when a court can order a party to undergo a psychological/pyschiatric evaluation.

Pennsylvania's new child custody law has a provision that allows a parent to request a mental evaluation of the other party if he or she has been convicted of certain criminal offenses. The list of crimes that can trigger this provision includes offenses that raise questions about the offender's fitness to have visitation rights or shared physical custody of a child.

Most commonly, a prior DUI or domestic violence conviction is the offense that triggers such a request.

Prior to the new law, a judge had discretion on whether past behavior warranted the need for an evaluation. While the new law now provides a defined guideline of criminal acts that support such a request, the change does not affect a judge's ability to order an evlauation based on existing or past non-criminal mental health issues, such as suicide attempts or substance abuse.

In the recent Lehigh County case of the armed man who held police at bay, the man's custody rights were suspended after the incident. An evaluation was ordered.

The judge eventually ruled that the Father adequately complied with the therapeutic recommendations of the evaluation and denied Mother's request for additional evaulations. Instead, Father was ordered to continue his mental health therapy in an effort to restore his visitation privileges.

This treatment had included an involuntary mental health commitment, a subsequent hospitalization, and continuing weekly counseling sessions and medication therapy.

"The appropriate course is to have Father continue in his treatment, refrain from the use of alcohol, and work with the therapist for reunification with his son," the court ruled.

When petitioning for an evaluation, a competent child custody lawyer should be able to recommend a suitable evaluator depending on whether the underlying issues involve substance abuse, violent behavior or acts of immorality. The court should also be presented with facts to determine not only the need for an evaluation but also which party should pay the costs of the evaluation and required treatments.

Judge: Father's involvement deserves primary custody

A Lehigh County Court child custody case, decided seven weeks ago, offers an example of how a judge ruled on a relocation issue (see the Blog article immediately below for an explanation of custodial relocation).
The case involved one child, who required special educational services due to his ADHD (Attention Deficit Hyperactivity Disorder).
The child's parents had separated, with Father remaining in Lehigh County and Mother moving in with her parents upstate, about 80 miles from the family home.
Both Father and Mother sought primary custody.
Mother's petition for custody, pursuant to the new child custody law, included a request to relocate with the child to her parents' upstate home.
After hearing testimony, the judge awarded Father primary custody.
Father had played a greater role in helping the child cope with his learning disability, the judge determined, which made Father the more suitable caregiver.
Father's competent involvement in the child's education and therapy demonstrated "that father has a proven system for (the child) which provides stability and continuity in all important aspects of (his) life," the judge concluded.
Mother's request to relocate was denied because the judge determined that, with Father, the child's educational, social, moral and emotional needs would continue to be adequately maintained in Lehigh County.
The judge also thought it significant that Mother did not attend the child's school Christmas pageant.

Relocation: One parent is left behind when children move

A "relocation" case is when a parent with primary physical custody of the children decides he or she wants to move to a new home or town, and that move will significantly challenge the non-custodial parent's ability to maintain a meaningful relationship with the children.
To obtain court permission to relocate, the relocating parent must show that the move will benefit the children, not simply the parent, and that the benefit would outweigh any harm caused by the disruption to the relationship between the children and the parent who stays behind.
Not every move is a relocation. A new residence may involve questions of what is best for the children but may not rise to the level of a relocation case.
In-state or even in-county moves that can trigger "relocation" issues include a change in school districts (especially if the non-moving parent remains in the same school district); a move within the same school district resulting in an involuntary change of schools for a child, or simply a move that creates longer drive times between residences that make weekday or dinner visits or involvement in a child's school or sporting activities impractical.
Obvious relocation issues arise when a parent decides to move a significant distance and the only visitation periods left available to the non-relocating parent are summer vacations or week-long school holidays.
A parent who wishes to move has a tremendous burden to demonstrate that a relocation is in the children's best interest. A better job opportunity in another city is not necessarily a valid reason for a parent to relocate -- a bigger paycheck alone is not a compelling reason to tear apart a solid, stable and longstanding relationship with the other parent.
Nor is a new romance with someone who lives in another city enough to allow a move. In the age of internet dating, this has become a common motive. But it is the children's happiness, and not the parent's desires, that are paramount. Moreover, a court will consider whether the relocating parent's new romantic partner will be relied upon to financially support the custodial parent and children, and whether the new romantic partner has any legal obligation to do so.
However, a parent who can demonstrate that the relationship left behind was not all that valuable to begin with, or that a new life in a new city will greatly improve the quality of the children's lives, has a worthwhile reason to try and relocate. Obviously, a parent who wishes to move due to an emotional whim or to spite the other parent has a much tougher road ahead.
Sadly, some non-custodial parents will fight a relocation simply to thwart the ex's pursuit of happiness, even if it is clear the change will benefit the children.
At the same time, a relocating parent must appreciate they will have to bend over backwards to offer every possible opportunity for the other parent to preserve a parent-child relationship.
These concessions could mean surrendering custody for entire summers and every important holiday to the non-relocating parent. It could include lesser sacrifices as well, such as agreeing to take responsibility for transportation at visitations, either by driving both ways or paying for airline tickets.
Pennsylvania's updated child custody law creates a new barrier to a parent who wants to move. There are specific procedures in place, which reinforces the need of a competent child custody lawyer for either parent to protect their rights and their children's rights.
The new procedure includes a formal notice (served at least 60 days in advance) and an opportunity for the other parent to file objections with the court (within 30 days of receiving notice). Parents who fail to follow the new procedure may not simply lose their case, they may face sanctions from the court.
The notice requirements for relocation also apply to non-parents with custodial or visitation rights, such as grandparents or other third parties who believe a move will impair their relationship with the children.
Updated: Pennsylvania's Superior Court recently overturned a county court judge's decision to allow a relocation when the relocating parent failed to strictly follow the new law's provisions regarding prior notice to the other parent. The case is E.D. v. M.P., 2011 PA Super 238 (Nov. 9, 2011).
   

Alimony is not Forever

Pennsylvania divorce law has long recognized the purpose of alimony is to "rehabilitate" the spouse who, for a variety of reasons, is leaving the marriage with a diminished economic future in comparison to the other spouse.
In most every divorce, one spouse will retain a greater earning capacity and be better positioned to maintain the standard of living they enjoyed during the marriage. Often, one spouse is in better health, has more education or employment opportunites, will be able to work more hours because they are not responsible for being the primary caregiver of the couple's children, or due to age has many more earning years ahead of them.
Alimony is designed to allow the spouse with fewer economic options a chance to establish themselves in the economic marketplace.
Alimony is not forever. In Pennsylvania, the period of alimony payments is based on the length of the marriage: As a rule of thumb, the poorer spouse will receive a year of alimony for every three years of marriage. A competent divorce lawyer will ensure that in most alimony situations, payments end if the poorer spouse remarries or begins to cohabitate with a new partner.
In contrast to Pennsylvania, the law of alimony has finally entered the 20th Century in Massachustetts.
There the governor in September 2011 signed into law an alimony overhaul. Now, as in Pennsylvania, Massachusetts alimony payments are based on the length of the marriage. The old law allowed lifetime alimony in both short- and long-term marriages. Also at odds with Pennsylvania, the old Massachusetts law allowed alimony even after the spouse moved in with a new partner.