Posts By Pittsburgh Family Law Services, P.C.

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My ex wants to move out of state with our child

February 8, 2022 · by Pittsburgh Family Law Services, P.C.

it is increasingly common to move out of our hometowns in our global world. Many leave their families to go to college and end up staying there. Others “go where the money takes them” and move across the country for work. It is only natural that families form in places where one spouse has no family nearby. When the relationship breaks apart though, problems may arise. A suddenly single parent can quickly become overwhelmed at having no family nearby. It is often after a separation that one parent wants to move out of state to be closer to her support system. This feeling is understandable, but raises numerous questions for the other parent. “Can she take our child with her,” “is she allowed to move,” and “will I ever see our child again” are questions that parents bring to us when they are served with relocation paperwork.

The Relocation Timeline

First, a word on how quickly a relocation matter proceeds. In Pennsylvania, absent unusual circumstances, parents must give at least 60 days’ notice to the other before they move. This means that a parent cannot tell you that tomorrow they’re moving to Florida with your child and be in compliance with the relocation statute. In the rare circumstances where it is not possible to give 60 days’ notice, the parent has to provide reasons. A mere “I didn’t know I had to give that much notice” will not suffice.

Once the parent files a relocation petition, the other has 30 days to object. If you object, you will appear in front of a judge. Relocation matters are supposed to be “expedited.” In my experience however, this is not to be misconstrued as occurring quickly. In many counties throughout Pennsylvania, you will be waiting for months before going to trial.

It is possible that a judge will allow the parent to move sooner pending the trial. This is most common if the parent staying in Pennsylvania does not have overnights. It also happens if there is a safety concern. But in the majority of cases, judges do not grant this permission.

Except in very unusual circumstances, you can rest assured that your children will not move out of state anytime soon. If you are exercising regular custody of your children, this is almost always the case.

Who gets to move?

I always remind my clients that the real problem isn’t the parent moving. Judges cannot stop adults from choosing to live where they want. In fact, it is good to assume that the parent will ultimately move away. The problem is that the parent wants to move with the child. When a judge denies a relocation, she is not forcing the parent to remain in Pennsylvania. Instead, she’s ruling that the child cannot move with the parent.

Because you should assume your ex will ultimately move, it’s important to ask whether you’re in a position to exercise primary custody. Most parents would be able to do so, even if it would require some juggling in their schedules. However, there are times when this is not realistic. For example, a parent may not have stable housing, or be actively involved in drug and alcohol rehabilitation, or not have reliable childcare. Any of these scenarios may make primary custody difficult. It is important to consider whether you can exercise primary custody because there will be no order preventing your ex from moving without your child.

Of course, once you decide you could care for the children on your own, you likely want to know what a judge has to consider.

Relocation factors

In addition to the regular 16 custody factors, a judge has to consider various factors in a relocation case. These include your relationship with your child, and whether you can maintain it if your child moves. The judge also looks at the benefits to the parent and the child in moving. For now, I will only focus on these three factors.

Preserving the relationship depends on how much you see your children now, and how much you are likely to see them if they move with your ex. If you are currently exercising custody every other weekend, it may be possible to see them just as much if your ex moves an hour away. It may not be the exact same schedule, but your time will not be reduced. If you share custody though, moving an hour away will require that you see them less than you do now. There is no set rule on how far is “too far” to interfere with your relationship. It is very case-specific and also depends on your child’s age and your financial circumstances. The vast majority of families simply cannot afford to fly every month from Pennsylvania to Florida even if they want to do so.

Judges do consider whether the relocation benefits your ex. In the vast majority of cases, the answer to this question will be “yes.” Parents often want to move to be closer to family, or because the cost of living is lower, or because they may earn more income. These are all legitimate reasons for a parent to desire to move. Often, there is no dispute that relocating would be in the parent’s best interest.

However, a relocation is not just about what is best for the parent. Ultimately it has to be in the child’s best interest. Judges consider whether your child will have any personal, financial, or educational benefits. Being around extended family in a new state is usually very positive! But, it has to be weighed in connection with changing schools and your children leaving their friends and family in Pennsylvania. If your children are thriving with healthy relationships in Pennsylvania, that has to be balanced against the unknown of moving to a new city.

Your child’s opinion on moving

Depending on how old your children are, the judge may want to speak with them. Many parents wanting to move say their children want to do so as well. It’s true that many times children do support moving. Moving to a new home requires a large financial and emotional investment and most parents would not do it if they thought their children would say no.

Your child’s opinion is not the final word though. Younger children may not appreciate how far away they would move, and how much would change. Their reasons for wanting or not wanting to move are also varied. A judge will look at the situation differently if the child says “I want to move to Florida so I can go to Disney World” versus “I’ve been bullied a lot up here and moving to a new place will let me start over.”

Key takeaways

Relocation cases are among the most contentious because there is rarely a “meet in the middle” point. There are numerous factors judges consider and no guaranteed outcome. If you are facing a relocation issue, it is good to consider whether you can exercise primary custody and what the benefits will be for your children if they move. It goes without saying that this is not a process you should undertake on your own! By thinking through the various relocation factors, you can help your custody lawyer craft a strong objection to the relocation.

Can my child choose where she will live?

January 31, 2022 · by Pittsburgh Family Law Services, P.C.

In every custody case, a judge must consider 16 factors when making a decision. Many factors involve the relationship of the child with each parent and the parents’ relationship with each other. “The well reasoned preference of the child” is one of the factors. This of course makes parents wonder: can my child choose where she will live, and how old does she have to be to make that choice? There is unfortunately no single answer to these questions. Your child’s preference may not carry much weight or it may be what sways the judge. How much weight a judge gives your child’s preference will depend on several factors.

Is it true my child can choose where to live?

The first thing I tell clients is their child’s preference is only one factor out of 16. The 16 factors are not weighted, and your child’s preference is not inherently a better factor than others. Judges can and do go against the child’s preference all the time depending on the circumstances.

A judge will not make a child choose between her parents. When judges interview children, they do not say “tell me where you want to live.” Instead, they will primarily ask your children about how they’re doing in school, what their interests are, and about their relationships with their parents. This doesn’t mean they don’t care about how your child views the custody arrangement! Judges do ask children if they like how much time they spend with each parent, and if they would like something different.

Just because your child wants to change the custody schedule does not mean a judge will ultimately do so. Instead, the judge will consider her preference in the context of all 16 factors. For example, a child may say she wants to spend equal amounts of time with both parents. This is quite common and something judges often support. It is hard to do so though, if the parents live 90 minutes apart. Although the child may want to spend equal time, it simply is not feasible. This does not mean the judge didn’t listen to her. Instead, it means her preference cannot control under the circumstances.

If you consider your child’s viewpoint in the context of the custody factors, it makes sense why it isn’t the sole factor. The judge does not want your child to decide who is more likely to attend to her needs, or who is more likely to involve the other parent. These are, however, factors which a judge is required to consider in making her decision. It is not your child’s responsibility to determine whether one parent is “better” than the other, and a judge will not place that pressure upon her. Instead, the judge will listen to your child to help understand how she experiences the current custody arrangement.

Does my child’s age make a difference?

Many parents believe the older their child is, the more weight her opinion carries. There is, in fact, some truth to this. A 16 year old is able to express herself far more easily than a 6 year old. There is also a belief among attorneys and judges that forcing too much custody onto an older teenager can ultimately backfire. I always tell my clients that ultimately you want to have your child choose to spend time with you when there is no longer a custody order.

A child’s age affects her ability to express a “well-reasoned preference.” Let’s look at some examples involving a parent relocating with the child to Florida. A young child may say she doesn’t want to move because she would miss the snow. And older child though may say that she is halfway through high school and is too involved in her life here. Both children say they don’t want to move, but the older child expresses concrete reasons for her opinion. Judges have different opinions on whether children should speak. Some judges interview a child even as young as 5. Others decline to do so until the child is older. Whether your child is interviewed or not depends on the judge and the specific circumstances. In general though, the older your child is, the more likely a judge will want to meet her.

When judges do speak with young children, they use it as an opportunity to learn about each parent’s household. Your child can tell the judge what she likes, whether she feels safe, and whether she feels comfortable. She can also tell the judge if she thinks she spends “enough” time with both parents. The judge can learn a lot about your household from speaking with your child.

Other considerations

Usually when a parent asks for the judge to speak with their child, it’s because they believe the child supports their position. It’s important to consider your child’s personality and maturity level in making this request. After thinking carefully, you may realize she just isn’t ready to express a preference. You should also remember that your child is still acting as a witness. As a matter of practice, you do not want to call a witness unless you’re sure the witness will help. Even positive answers can work against you. I have seen children repeat to a judge word for word what is in their parent’s pre-trial statement! While this may sound helpful, all it does is make the judge believe the parent coached the child. This is not the impression you want the judge to have!

Although it is only one factor, judges can and do take your child’s viewpoint into consideration when making a custody determination. Before asking for your child to speak with the judge, talk with your custody lawyer first. Your lawyer can help you articulate what you believe your child’s preference to be and why you believe she has a preference. This in turn, will help you prepare a more effective case for your trial.

The importance of a power of attorney

January 28, 2022 · by Pittsburgh Family Law Services, P.C.

It’s very easy for an estate planning lawyer to tell everyone “make sure you have a power of attorney.” We talk about all the problems that can occur without one. You could be unable to pay your bills or make medical decisions. You could even require a guardianship if you cannot care for yourself. But lawyers do not often use real examples to emphasize the importance of a power of attorney. I want to take you through a cautionary tale involving my own family. Fortunately, this tale has a happy ending.

Our family’s story

Like many Pennsylvanians, I have elderly loved ones in my family. Very few of these family members have done any estate planning despite my nagging them! One day out of nowhere, one person asked to set up estate planning. We’ll call her Ginny. Ginny wanted someone to handle her finances and medical decisions if she were unable to do so. She was afraid to do this for a long time; her greatest fear was giving someone too much control, especially over her finances. Fortunately, this is easy to fix! We talked about what would suit her needs. For her finances, she wanted someone to pay her bills. She did not want them to sell her house unless she was in the hospital for a long time. She wanted someone to receive statements from her retirement account, but not be able to handle those funds.

Ginny didn’t think she could have these limits because she printed a form online that didn’t allow her to do so. After a long discussion, I told her this was incorrect. You can always limit an agent’s authority! Together, we created a document which gave her what she wanted. As a result, if she were in the hospital for surgery, someone could pay her bills for her. We signed the documents and forgot all about it, for approximately 1 week.

A very bad fall

Of course, life has a way of throwing unexpected curveballs. Ginny fell down her steps shortly after signing her documents. After that, she learned she needed surgery. Of course, this was not quick surgery. It required weeks of recovery in the hospital. Ginny could not go home after her surgery, because she couldn’t walk up steps. So, she had to go to a care facility.

It is no secret that nursing homes or any type of facility providing long-term care is expensive. Fortunately, Ginny’s agent was on the ball. She immediately spoke to the bank to get access to her accounts. Afterwards, she immediately started paying Ginny’s bills. She spoke directly with the nursing home to make sure they were paid and that everything was going well. She also made sure Ginny was progressing with treatment. Most importantly to Ginny, her agent kept her informed at every step of the way.

A long recovery

Unfortunately, Ginny did not have an easy recovery. Learning how to walk after a bad fall and major surgery is a long road. A few months after her accident, her agent realized Ginny may need to sell her house to pay for the nursing home. This could be a problem, because Ginny was not able to do the work required to list a home for sale. This is a time when attorneys like me are likely to get calls asking about a guardianship. However, Ginny’s agent did not do this. Ginny may not be able to actively be involved in a sale, but she can authorize someone to do so. So, her agent had a conversation about this. Ginny ultimately decided that she wanted to give her agent more control. Ginny is now comfortable and confident that her agent is caring for her best interest.

Key takeaways

There are a few lessons in this situation from my family. First, Ginny initially wanted to limit her agent’s control. Although she changed it later, her first document worked. Her agent immediately had authority to access her bank accounts and pay her bills. She changed the level of control when she realized her agent needed more.

Secondly, Ginny’s agent always kept in touch with her. Just because someone executes a power of attorney does not mean they are incompetent. The opposite is in fact true! Someone unable to communicate decisions is unable to designate such authority. That is why Pennsylvania law provides for guardianship of adults. Ginny’s agent was not required to get her permission before acting. But, by keeping her informed, Ginny trusted her agent was acting in her best interest. This ultimately solidified her decision to expand her agent’s authority.

Finally, Ginny got all of this in order before she needed it. The outcome could have been very different had she never designated anyone to act on her behalf. Somebody would have to guess at what medical treatment she wanted, and somebody would have needed to physically bring Ginny’s bills and checkbook to her. As I write this in 2022, this is not ideal given the conditions with Covid-19. Not only that, but Ginny needed to focus on recovery rather than paying bills. Authorizing someone to do this for her gave her the chance to do that.

I would be remiss in failing to mention the very real cost-savings for Ginny. Had Ginny needed a guardianship, it would have required a petition in court with all the court and attorney fees associated with that. Instead, she paid only for the drafting of her estate plan.

In the course of a given year, you are far more likely to need a power of attorney than need a Will. I understand the ease of saying it isn’t necessary to have one right now. For the most part, that’s true. But the purpose of estate planning is to prepare for the unexpected future. By planning for something she did not intend to use, Ginny enabled her family to protect her when she needed it. I hope this tale helps emphasize the importance of talking with your loved ones about estate planning and planning for the unexpected.

***Names and details have been changed to protect privacy. The content is published with permission of the affected family members.

The best times to update your estate plan

January 26, 2022 · by Pittsburgh Family Law Services, P.C.

Having a well-crafted estate plan is the best way to protect your loved ones in the future. It allows you to set aside how your hard-earned assets will be distributed and gives your family protections they would not have otherwise. But planning for the future is not something you should only do once. Instead, you should occasionally update your estate plan. Life brings numerous changes; when those changes happen, it is good to consider whether your current estate plan reaches your goals. You can choose to look at your Will, Powers of Attorney, and trust documents at any point. There are no rules or requirements in place. However, there are certain times I recommend people revisit their estate planning documents. We will look at a few of these.

You get a divorce

If you recently divorced, you may have received property in equitable distribution. This property may include retirement distributions, proceeds from the sale of a house, or the former marital residence. Depending on what you received, these assets may become part of your estate. This is a good time to consider who will receive what.

Another reason to update your estate plan after a divorce is to revisit who the beneficiaries or fiduciaries will be. Sometimes, people leave part of their estate to their ex-spouse’s family members. While this may sound strange, it happens frequently where funds are left to a niece, nephew, or stepchild. You may feel differently about these family members receiving something after a divorce though. Sometimes family members take sides in a divorce or become estranged from each other. If you no longer wish to leave them anything, you can remove them entirely from your Will.

Along with your Will, you should consider your powers of attorney. If you let your former sister in law be your agent to make medical decisions, you may not wish her to do so after a divorce.

You remarry

Another time to update your estate plan is if you remarry. This is especially true if you have children. Many people write their Wills so that their spouse receives everything if they pass away. The hope is that the spouse who survives will distribute the estate to the children. This works well in many families! But it far from guaranteed in blended families. You simply have no way of knowing that your spouse will leave anything to his or her stepchildren. If you want to guarantee your children will inherit from you, it is equally important that you look at a prenuptial agreement. This will clearly define what will be “marital” property and what will simply belong to you.

Your beneficiary’s needs change

Most people in Pennsylvania leave their property to their families directly. But sometimes this may not be in a family member’s best interest. Your spouse may become disabled, or your child may develop a severe drug addiction. You may want to support these loved ones, but know that leaving them assets may not work well. That is when it is worth considering a trust so the funds will be managed properly.

Your personal values change

I focused this article on handling changes to your Will. But I cannot overlook changes to your financial and healthcare powers of attorney. With a healthcare power of attorney, someone else will make medical decisions for you when you cannot do so. This includes deciding types of treatment and making end of life decisions. As you go through life, your perspective on these issues may change. You may have not wanted life support in the past, but feel differently because you now have children. Or, you may have watched a loved one live in a vegetative state and decide you do not want to experience the same. There are no right or wrong feelings. But if your values and priorities changed, it is time to revisit your plan.

If you want to change your healthcare advance directive, you should also talk to you agent. Your agent may not support your new wishes. Updating your estate plan is the time to designate somebody else, if that happens.

Conclusion

As you can see, there are many times to revisit your estate plan. This is by far not an exhaustive list! But changes to your family, changes to your values, and changes to your finances are the ideal times to consider whether your original plan meets your goals. The purpose of an estate plan is to protect your family in the future. By periodically revisiting your wishes, you can ensure that they have these protections.

I lost my custody trial. What did I do wrong? What can I do?

January 24, 2022 · by Pittsburgh Family Law Services, P.C.

Man upset after his custody trial wondering what went wrong

It’s never easy to lose or receive a negative decision after a custody trial. They involve the most important aspects of your life: your children. It is devastating to come out on the losing end. You probably paid large legal fees, which makes it even harder to accept the outcome. If this just happened, you may wonder what what went wrong, or what to do next.

What did we do wrong?

You may wonder if your lawyer did something wrong that made you lose. Very often, when I speak with someone who is looking for a new lawyer, they believe they lost their trial because their past lawyer did something wrong. While it is easy to assume that good lawyers win and bad lawyers lose, a custody trial simply doesn’t work that way. An experienced lawyer will take a set of facts, present it in the most favorable way, and help the judge understand the facts in a way that makes her able to find in your favor. However, lawyers cannot change the history of a case, or control the outcome. In a custody case, outcomes often turn on facts and events which happened long before hiring your lawyer.

Unfortunately, not all facts support a favorable outcome, and some cases are harder than others to persuade a judge. This is often the case when one parents wants to move away, or when a parent has only recently addressed a serious drug addiction. Sometimes you may do everything right, but it hasn’t been long enough. This does not mean you did anything wrong, or that you are a bad parent! It means that certain types of cases are very challenging to succeed.

You may also wonder if you lost because something wasn’t presented in court. Clients are often concerned about this. In every custody case, there are exhibits and facts that never get shown to the court. It is common to think the case would have gone differently, if only the judge had “everything” in front of her. Why didn’t your lawyer show those text messages? Why didn’t your lawyer introduce the voicemails from years ago? “More is better” is often the wrong approach in custody cases. Your lawyer knows the court’s priorities, the facts of your case, and what the other side will argue. Instead, your lawyer uses her knowledge to pick the strongest arguments. This ultimately means excluding information that doesn’t address the court’s priorities or distracts from your strongest arguments.

Finally, parents often ask why their lawyer didn’t say more about the other’s bad character. In most custody cases, these arguments are often vague and provides little of valuable use. Parents rarely come into a custody trial with no blemishes. There are text messages, voicemails, and missed communications which do not support the child’s best interest. This is very common at the beginning of a separation. But their existence does not by itself indicate poor parenting.

What can I do next?

First, talk to your lawyer. She may have insight into why the judge ruled a certain way. Your case may have always been harder to win, or there may have been some glaring fact that tilted the judge in the opposite direction. This is usually clear from reading the judge’s opinion. It is uncommon that an experienced lawyer truly does not know why a judge made a certain decision.

Next, you should take time to read the judge’s opinion. This is often hard, but it provides valuable information. It lets you see what the judge found problematic and what to change moving forward. If the judge found that housing wasn’t stable, then prepare to address that head-on. If the judge found you to be less involved, then be proactive in requesting information about your children. The purpose of understanding what concerned the judge is not to make you feel bad, but to give you the opportunity to make concrete changes.

If you take the time to address the judge’s concerns, eventually you can request a change in custody. Judges can and do change their orders when they consider a previous issue to be resolved. It is not a quick or easy process, but it is very possible. Losing a custody trial once does not mean you cannot have a better result in the future.

Custody orders are not set in stone, and they can be changed if you address the problematic areas. This shows the court you took its concerns seriously and are acting in your children’s best interests. Child custody is rarely a one-step process. By using an unfavorable decision as way to make changes, you can obtain a far more positive outcome later.

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