Appealing a Custody Order

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What do you do when a judge gets the custody decision wrong? How can you appeal a bad decision that is going to hurt your children or your family? Under Pennsylvania law there are typically two types of appeals that you take from custody orders.

Two Types of Appeals

The first is when a decision was made by a custody master. A “master” is a hearing officer who makes a determination that is essentially a recommendation to the judge. Depending on what county you are in, you may be able to appeal this decision to a judge of the Court of Common Pleas. You usually have 20 or 30 days to appeal this determination—but check local rules to be sure. This appeal involves asking a judge to take a second look. This review is done de novo, which means that the judge makes the determination all over again as if the master had not already ruled.

The second type of appeal is when the judge has made the decision after a trial. The appeal goes from the Court of Common Pleas to a new court altogether—the Superior Court. This is a much more difficult appeal to take because it requires showing to a higher court that the judge actually made an abuse of discretion. The judge is given an incredible amount of latitude in making his or her decision and usually is not overturned by appellate courts. Appellate courts (that is, the courts that hear appeals) tend to side with the decision of the judge below unless very good grounds for reversal can be demonstrated.

Reasons to Bring an Appeal

There are a number of reasons to bring an appeal. One is when the decision is a violation of the law. This is where a judge intentionally misapplies factors and disregards important evidence, or otherwise makes a bad decision that is based on the law. In such cases, there may be a strong appeal. The second way that an appeal can be brought is where the judge made a bad ruling at trial. Grounds for a redetermination on appeal can include:

  • Considering evidence that is illegal,
  • Not considering evidence that they are required to,
  • Disallowing an expert, or
  • Allowing testimony that was not legal.

Third, and finally, a decision can be appealed on the basis that what was done is not in the best interest of the child. Where there has been an abuse of the court’s discretion, and where the judge’s decision is one that cannot be supported by the evidence, as viewed by a rational fact finder, an appellate court may consider reversing a decision by the trial court.

In all these cases, appeals are difficult to win. It is important to get a good outcome in the custody trial in the first place. If you have lost trial and want to appeal, call the attorneys at Cornerstone Law Firm so we can discuss how to appeal your custody decision.

Seeking an Amicable Divorce by Working with the Same Attorney

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Welcome to Family Law Tip of the Week, a regular series on our blog where we offer tips on how to go through divorce and custody disputes in an amicable way. Divorce should always be a last case resort but if you are going through it, we want to provide some tips on how to survive it.

When you are going through a divorce and you are trying to keep matters amicable, one approach is to seek a single attorney who will moderate the dispute for both of you. Rather than each of you getting an attorney, paying higher fees, and working against each other (and doubling the cost to your marital estate in the process), you can choose one attorney to work with both of you to develop an outcome that is fair and reasonable for both sides. Negotiation will still ensue, but this one attorney represents both of you and will do their best to come up with a solution that makes it work without having to go to court.

This approach is rare for a few reasons. First, if the divorcing spouses do not get along to begin with, having a joint attorney is not likely to fix that problem. Unfortunately, many divorcing spouses find they cannot even have an adult conversation with the person that they are getting divorced from. It is going to be difficult to agree on an attorney and work together with that attorney or take their advice seriously.

Second, if either of the two of you have a protection from abuse order, either mutually or from one person to the other, you will not be able to communicate effectively with your attorney as the attorney will have to avoid being a go between for messages that are not legal.

Third and finally, though legal to proceed together with one attorney, it does, by definition, present a technical conflict of interest. The attorney can’t get the best outcome for either person if he is working to find the best compromise for both. And if the two spouses cannot agree after the attorney’s best efforts have been made, that attorney would be disqualified from representing either party in court on the divorce.

Having said all of this, having a single mediator assist you to work out a divorce can be a powerful cost-saving and stress-reducing measure. A mediator’s goal is to bring you together. An attorney/advocate’s goal is often to push you apart. The costs tend to be lower and having someone invested in finding a way to reach a solution that does not involve the two of you going to court will provide an outside force to hopefully resolve it with less fighting and trouble.

Additionally, if you have kids in the mix, having a mediator attorney work out a custody agreement can be a really good approach too. This attorney can help the two of you get home studies, meet with counselors, and do other things that you may have to do through the court process anyway. Reducing stress on your kids in this process is immensely valuable to their well-being and your family’s long-term health.

This is just one of many approaches that we recommend to clients to avoid making litigation more heated than it needs to be. The divorce and custody process is already painful enough to be involved in. If there is a way to reduce that, then we strongly recommend it. If you have questions about this approach or any others, call our family law attorneys at Cornerstone Law Firm today for a consultation.

The Purpose of a Home Study in a Custody Dispute

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When you’re fighting for custody with the other parent of your child, you will be introduced to many new terms and pieces of the legal process. One of these is called a “home study.” Often in a custody case, you’ll be asked by your lawyer to obtain a home study, and sometimes you’ll be ordered to obtain one by the court. So, what is a home study?

A home study is provided by an expert who is paid by either one or both parties in the case. The expert will come in and look at the home that the children would be living in. He or she will then provide a report to the court about the home’s suitability. The expert might walk through the house and will want to look at safety features to ensure that your children will be safe there. The expert considers such factors as:

  • the age of your children,
  • any special needs they have,
  • the supervision or care necessary to maintain safety in the home,
  • and who else is living in the home. This can include the parent’s new spouse or live-in significant other, and any of their kids who may be living there.

The home study enables the hearing master or judge in a custody case to assess several of the factors that go into a custody award. Most notably, a home study will identify whether the parents involved are able to suitably keep the number of children involved. If there are five kids and one parent is living in a small apartment, this might preclude overnight visits for a while. Alternatively, if the home is not yet finished or is being renovated, this can also impact a home study finding.

Home studies are often requested from the Court by one side of a custody dispute when that parent believes the other parent’s home is unsuitable. This can be done out of jealousy in some cases, which is unfortunate. But in many cases, asking for a home study is the only way to verify what your co-parent’s claims are about their new house or apartment.

A home study plan is only one of many tools that are in the custody lawyer’s playbook. Furthermore, a home study plan isn’t necessary in all cases. The most important part of a custody dispute is getting it resolved in a way that is in the best interests of the children involved. This means that attorneys will sometimes find ways to come to agreements without having the parties spend even more money on expert witnesses to prepare things like home study plans.

If you have questions about home study plans or about the custody process in general, call Cornerstone Law Firm and speak to one of our family law attorneys. Our attorneys are empathetic and caring. We can help you walk through this difficult time for your family and obtain an outcome that is right for you and your children.

Modifying Custody

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If you’ve reached a custody agreement with someone, it’s not set in stone forever. Circumstances change, people change, and of course custody arrangements have to change. This is especially true if you reach a custody agreement with someone when the child is young. As the child grows older, changes will need to be made.

Custody agreements are never really final, and neither are court orders regarding custody. Either party may move at any time for a reconsideration of custody. Of course, immediately after a trial, when a judge has made a decision on the merits, changes are unlikely to be seriously considered or granted. Judges look for a change of circumstances when considering motions to modify custody.

So what sort of change of circumstances might bring about a new custody order? If a judge previously found that one of the parties was not fit to have as much custody time because of a drug problem, mental illness, or a past history of being unwilling to care for the child, then showing that one of these issues has been carefully addressed may result in a change of custody. Showing a course of rehab, having witnesses able to speak about the change of the party, or showing that the party has taken classes for anger management or other types of counseling that might help them can all be part of showing a change of circumstances. Perhaps the judge previously refused to give overnights to one party because their house was not in a good condition to live in or because they were homeless. Once a person has established residency and has an acceptable place for a child to spend overnights, the custody order can be modified.

Other examples of change in circumstances can be because the child, as they grow, needs something different from each parent. Perhaps the child is an athlete and has an opportunity by spending more time with one parent to improve their chances at an athletic scholarship. In other cases, courts have found a change of circumstances where one parent is able to help them with academic challenges that the other parent struggles with.

As you can see, there are a number of ways that a change of circumstances can be found by a court. Understanding the significance of these changes and preparing to prove them is all an important part of litigating custody matters, even after a custody order came down in a trial or other hearing. Whether you’ve reached a custody arrangement by agreement or by court order, there are ways to modify the agreement.

Of course, in all circumstances the best approach is to go to the other party and see if you can work it out as co-parents. Courts appreciate efforts that have been made to do this by co-parents and do not generally smile upon someone who comes into court without having tried to first work it out with the other parent. But when an agreement can’t be reached, going to court for a modification of custody is the next step.

If you have questions about how to approach a custody change, contact the custody attorneys at Cornerstone Law Firm regarding your situation. Our family law attorneys can help you figure out the best way for you to move forward with your custody matter.

When Winning Feels Like Losing

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There is nothing more important in life than your kids. Fighting over who will have custody of your kids is the most stressful thing that most people will ever go through. From the first conversation with your lawyer to the last, you will be talking about “winning.” At the end of the process, what does winning really look like?

At Cornerstone Law Firm we work hard to help parents make decisions that will help them live peacefully with their co-parent and do what is best for their child. The hallmark inquiry in a child custody battle is what is in the best interest of the child. Unfortunately, two parents fighting over their child is never in that best interest, but it is all too common.

Even when you try to de-escalate with the other parent, the frustration of dealing with someone at their worst can cause you to lash out, to make mistakes, to say things you don’t mean, and to widen the gap with the other parent. Litigation costs a lot of money for both parents, and this also causes people to get their backs up against the wall and make bad decisions. Many parents feel they don’t have any option but to make it more personal as time goes on because the other parent is being unreasonable about their demands.

But as a parent, it’s important to “play the long game” when it comes to custody. Part of “winning” in a child custody dispute means making sure that your children don’t feel caught in the middle and don’t see you and your co-parent fighting. Winning means teaching your child to respect the other parent, even when they are not at their best. Winning means making your children feel safe. It is hard sometimes to control your frustration, but it is absolutely vital to helping your child feel safe.

This is why a lot of times winning looks like compromising. It looks like reaching a resolution. It looks like going further than halfway for the other parent.

None of this means that you shouldn’t fight for your kids. It doesn’t mean you shouldn’t litigate a custody dispute. But it does mean that your strategy should take into consideration building the new family arrangement that will be in place until your child reaches adulthood. At Cornerstone Law Firm, our attorneys are here to help you work through this painful process. We work hard to make sure that what we arrange is in the best interest of you and your kids and will help create a better world for them going forward.

If you’re in a custody fight, contact one of the lawyers at Cornerstone Law Firm so we can help you navigate this time in your life. Our attorneys are here to help you as you make these decisions for your children and your family.

Adopting your Stepchildren

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The Brady Bunch was meant to be a humorous show about the difficulties of merging two families with kids. But 50 years after the show debuted, there isn’t really any joke about it. Merged families are the norm, and for parents working to ensure that their kids feel part of a new family unit, there can be unique challenges.

When you’re acting as a stepparent, you’re familiar with the challenges of providing parental guidance in a substitute role. If the child’s biological parent is absent or unknown, the stepparent usually feels more free to take an active role.

Many stepparents choose to go the extra mile in adopting their stepchild. The adoption process can be sticky, but here are four things to keep in mind if you choose to adopt a stepchild.

1. For estate planning purposes, the stepchild is now your child.

If your will leaves things split “between my children,” this includes both biological and adopted children. You can, of course, disinherit (or limit the inheritance of) a specific child. This means that you may still adopt a child without allowing them the same inheritance as your children. For stepparents adopting a child, this often isn’t a concern. If you want to treat them like your kids during life, you may wish to treat them like your kids after death. But you should still be aware that, absent clear language in your will, the adopted stepchild becomes your “issue” for all legal purposes. And if you don’t have a will, the adopted stepchild will inherit by default. (And if you don’t have a will—get one!).

2. Adoption will require the biological parent you’re “replacing” to terminate parental rights.

In the event that the “original” parent is still involved in the child’s life, that parent will have to terminate parental rights for you to adopt your stepchild. Your spouse’s co-parent may have good reasons to agree to terminate rights, however. For example, the co-parent who terminates their rights will not have to pay child support and will not have obligations as a parent. If the co-parent is far behind on child support to begin with, it may benefit all parties for the stepparent to adopt.

If the biological parent you are replacing has passed away or was never known, then the process is simpler. You can step into that role with the consent of the biological parent.

3. In the event of a divorce, both of you will have custody rights.

One more thing you should consider when adopting your stepchild is that you will acquire legal rights as a parent. This means you can make decisions about the child’s schooling, rearing, discipline, religious instruction and more. In the event that you and the child’s parent separate, you’re entitled to custody rights the same way a biological parent would be. An adoption is a permanent mechanism, and it doesn’t dissolve just because the parental relationship does.

4. Adopting a stepchild can help the stepchild feel part of a “real” family.

Not every child will feel the same way about being adopted by a stepparent. There can be a feeling of loss for the child who loses connection, even in an intangible way, with the “original” biological parent. And the adoption by a stepparent can change the relationship from a more “fun-loving” relationship to one that is more serious. But many children express happiness about the family situation normalizing. Some stepchildren want the opportunity to see their stepparent as their “real” parent and claim a sense of normalcy in the process.

Obviously, depending on the child’s age, it’s important to speak with the stepchild together as a family and see how he or she will feel about this step. A child’s preferences should not be disregarded lightly, and it might make sense to let the process take some time as all of you adjust to the idea of an adoption before taking the steps to formalize the relationship.

Conclusion: Adopting a stepchild is a big decision

In conclusion, adopting your stepchild can be a beautiful and loving thing to do. It also requires some effort to accomplish. Most importantly, everyone involved in the situation needs to understand that it is permanent. If you’re considering adopting a stepchild, call the family law attorneys at Cornerstone Law Firm so we can help you through the process and help you consider all of the options. Our attorneys love adoptions, and we’re here to help you figure out the process.

What is the penalty for filing a false PFA in Pennsylvania?

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When someone lies in a Protection from Abuse petition, an incredible amount of consequences follow for everyone involved. The person who is named as the defendant in a PFA temporarily loses access to their guns and is often evicted from their home pending the outcome of the case. Sometimes the defendant is even evicted from a home where the victim did not live. Furthermore, the defendant named in a PFA is sometimes barred from seeing his or her own children during the pendency of the PFA.

For as long as courts have existed (and longer, of course), people have lied to get what they want. In Pennsylvania, some people have learned that they can lie on a petition and wreak these consequences on a defendant. So what are the consequences to the person who filed the PFA if what they said in the PFA is a lie? Can you pursue the person who filed and seek to have them punished for what they said in the PFA?

First, it is important to win the PFA. The initial step in seeking consequences is to win the battle over the PFA. This means going to the court appearance, hiring an attorney to defend you, and having the petition for a PFA dismissed. A good family law attorney can help you with this process and it’s important not to try it alone. If the judge does not believe your side of the story, the judge can enter a three-year PFA order against you, and at that point it will be all but impossible to pursue any action against the person who filed the PFA because the judge will have found the filing to be true.

Do not underestimate the potential danger in a PFA petition. PFAs are granted everyday in Pennsylvania, in every county, and often on nothing more than the word of the alleged victim who filed the PFA. Gathering evidence, preparing your defense, and having the right attorney to defend you are vital in this step of the process.

Review any false statements in the PFA. Once you have won the PFA action, the next possible step that you can take is to review whether there are any statements in the PFA that are factually false. It’s important to note that we are referring now to factually false statements and not merely opinions. Someone who says in a PFA, “I feel very afraid of this person,” is not likely to be prosecuted for perjury or face any other consequences. This is a statement of feeling or opinion, and even if it’s not “true,” or even if it’s not based on any objective facts, the alleged victim is generally entitled to their own opinion of the situation.

But of course, statements that can be proven to be lies or which are later contradicted under oath at the hearing can be the subject of a perjury charge. PFAs are filed under oath. The person who is sworn in and said the petition was true and correct to the best of their knowledge can face criminal charges for lying in the petition where specific facts are later disproven by video, physical evidence or by contradiction by the alleged victim at a hearing.

Consider whether the PFA petition was filed to set up custody or divorce, to lay the groundwork for a separate civil law action.  Most importantly, in considering a PFA that was filed against you, you should consult with your attorney about what other moves you believe the alleged victim is going to make in this matter. For example, did they merely file a PFA in order to surprise you with a divorce or custody petition? Did they file a PFA to put a cloud over your job or bring some sort of civil action against you claiming damages? Or was it just a moment of vindictiveness after a bad breakup? Understanding what the alleged victim’s next move is will be important in preparing to defend yourself against any other actions that they may take against you. In most cases, the best offense is a good defense: it is important that you beat the PFA charges. Whether you actually want to take action against the person who filed may depend on what other actions you think they may try to take against you. Playing this chess game can be exhausting, but it is important to think through it with an attorney who can give you good advice on your specific situation.

Conclusion: seek a family law attorney today. If you have questions about a PFA that’s been filed against you, contact one of the family law attorneys at Cornerstone Law Firm to discuss your case. Our attorneys have experience defeating PFAs, walking people through custody and divorce actions, and more. Call us today!

August 2022 Review

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This month the attorneys at Cornerstone Law Firm have been busy with:

  • landlord/tenant actions all over the state
  • personal injury cases that are settling and going to court
  • insurance disputes
  • contractor fights
  • a trade secrets and corporate freeze-out trial

Attorney Stephanie Rauch-Mannino has spent much of her month working out final custody arrangements for families that are splitting up, challenging a post nuptial agreement for unfairness, litigating the proper amount of child support to be paid to a single mom and working on a final distribution of assets in several divorces.

Attorney Tony Distasio has been handling landlord/tenant work for Section 8 clients, where evictions are based on everything from unpaid rent to allegations of criminal misconduct and violence. Attorney Distasio has been everywhere from Pittsburgh to Philadelphia this month as part of hearings on these issues.

Attorney Carl Carrero has been writing briefs and motions and has been to court to handle a request for a delay of a sheriff sale. As sheriff sales pickup and foreclosures continue, Attorney Carrero and the Cornerstone Law Firm team are expecting to see more last-minute litigation over attempts to sell houses after foreclosure.

Attorney Joel Ready began the month handling a 2-week trial on a claim regarding trade secrets and a fight over corporate ownership of a large company. From there, he has handled several contract disputes. He has also been finalizing a few guilty plea agreements in the last 2 weeks to ensure the best possible deal for individuals facing criminal charges.

Finally, the whole staff at Cornerstone Law Firm has been working to ensure that clients’ wills are being drafted, contracts are getting signed, deeds are being drawn up and filed, and that clients are getting quick responses to their concerns. If you have a question about your legal issue, call Cornerstone Law Firm today so we can help you.

Lions and Tigers and…Gerbils? — Pet Custody in Pennsylvania

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The divorce process is a difficult one no matter the circumstances. Most issues related to this process carry an emotional component. While we would expect emotions to run high when the parties are deciding issues such as custody and the disposition of the family home, emotional attachments to certain property also can give rise to disputes. Artwork, photographs or irreplaceable keepsakes can be quite meaningful to either party, and the process becomes more than just dividing up things. Although it is clear to most the difference between determining the fate of a chair shared by the parties and that of their child, it might not be so clear when pets are involved.

It should not surprise us that a common question received by family law practitioners is how the divorce process impacts pet ownership. The bond between an owner and an animal can be very strong, and the reciprocal emotional attachment often experienced cannot be replicated. Determining who gets to keep Fifi can be a big battle when dogs or cats are viewed more like children and when both parties have developed an emotional attachment. The issue is that, unless you reside in a select few states, Fifi will be viewed no differently than a TV or a sofa.

While the parties might come to an agreement regarding custody or visitation of pets, and while they might memorialize their intentions in writing, it just might not matter. Outside of Indiana, Alaska, and California, pet custody is not a legal concept. In Pennsylvania, the Superior Court upheld the view that the disposition of pets during the divorce process is akin to the disposition of property (Desanctis v. Pritchard). Specifically, the Court declined to give any credence to an agreement granting an ex-husband visitation rights to the family dog when the dog had been granted to the ex-wife through their property settlement agreement. The Court viewed this no differently than granting a visitation schedule for a table or a lamp, which it never would entertain. There might be some hope on the horizon for pet-lovers after all.

PA House Bill 1432 introduced in 2019 currently sits before the House Judiciary Committee, and rumor has it that the bill has enjoyed bipartisan support. The bill seeks to establish a set of factors for the court to follow in determining the best result for companion animals. If passed, the proposed legislation would add another avenue for the court to aid in resolving the sensitive issues faced during divorce. Until then, the fate of Fido will be determined like every other car or couch shared by the parties.

If you are going through a divorce and in need of some help, contact Cornerstone Law Firm. You can also read our Family Law Tips on when to file for child support, if you need a divorce lawyer, establishing healthy lines of communication, and more.

Who Gets the House After Our Break-up?

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When you live with someone but are not married, this can create a host of legal issues, particularly when one moves out after a break-up. Who gets the house? If one person owned the house and the other simply lived there, and if that person made improvements to the house while living there, is he or she entitled to payment for any of those improvements? What happens if the two of them purchased a home together, but one person paid all the bills for the house? Does that person have a claim to reimbursement for payment of those bills?

First, under Pennsylvania law, unmarried cohabitants have no property rights in one another’s property simply because they live together. Even if you lived with someone for thirty or forty years, you have no legal right to what is essentially a divorce settlement upon separation. Neither party is required to pay spousal support, alimony, or anything of the kind (child support is a separate issue). However, if you purchased a home together, the two of you do have a right to share in the proceeds of the home once it is sold. In most cases, we are able to help the parties negotiate a resolution where one side buys out the other’s interest in the property. This can be a little complicated, especially when the market is very high or very low. The parties have to reach an agreement on what is the fair market value of the property. If they cannot agree, then one party can go to court and ask for what is called a partition. We have covered partitions in other articles, but this is when the property is sold and the money divided between the two.

What happens if only one person owns the property, but the other person has made improvements? In most cases, this will be difficult to prove because the party will have to show that the improvements increased the market value of the property. Claiming that the improvement made the kitchen look nicer, the floors look better, or that it was some other type of cosmetic change is insufficient. Most types of improvements that people discuss making are cosmetic in nature. Even an improvement with a clear function like a deck fits into this category. To prove that these improvements increase the market value of a property is always difficult.

If you are going through a break-up and you feel that you need legal help, our attorneys have experience in this area and can assist you. Call us today and set up an appointment so we can discuss your rights in the property and how to make it a clean break.