Drug Treatment for Teens

Drug Treatment for Teens

Parents of drug dependent teens can have their children involuntarily committed to residential drug and alcohol treatment facilities. A little known and rarely used section of Pennsylvania’s Drug & Alcohol Abuse Control Act permits parents and legal guardians to petition the county court to determine whether a minor is in need of court ordered drug or alcohol treatment, either out-patient or in-patient. A minor is a person under 18 years of age.

If the parent or guardian’s petition identifies facts that show “good reason” for treatment, the court has the authority to take the minor into custody and to require an assessment by a psychiatrist, psychologist or certified addiction counselor. The minor is entitled to a lawyer, but is not entitled to have the lawyer present at the assessment. After the assessment, the minor is entitled to a hearing before a judge. If the judge finds “clear and convincing” evidence at the hearing that the minor is drug or alcohol dependent and in need of treatment, the judge can commit the minor to treatment for up to 45 days. At subsequent review hearings, the judge can continue to commit the minor to treatment for any number of successive periods up to 45 days each. At least every 45 days the minor is entitled to a review hearing before the judge.

Minors who are court ordered into in-patient rehabilitation are unlikely to stay in care unless they actually benefit from the treatment by actively engaging in the recovery program because most in-patient rehabilitation facilities discharge patients who refuse to cooperate with treatment. But skilled facilities are often able to help drug and alcohol dependent teens transform their behavior and commit to treatment. Parents and legal guardians sometimes can succeed in saving a young person’s life by seeking the court’s help in getting a minor into drug and alcohol treatment.

Cite

71 P.S. §1690.112a.

See also In Re F.C. III, 2 A.3d 1201 (PA 2010).

Pennsylvania Child Support Guidelines

Pennsylvania Child Support Guidelines

Pennsylvania’s Support Guidelines establish the amount of child support owed by one parent to the other. A parent is entitled to receive child support if he or she has physical custody of the child for more overnights than the other parent. Where parents share physical custody equally, the parent who earns more money owes the other parent child support.

The amount of child support is calculated from the combined total net income of both parties. The Pennsylvania Support Guidelines include a specific dollar amount, called the “basic support obligation,” for each child of the family, based exclusively on the parents’ total net combined income. The separate responsibility of each parent to pay a share of the Support Guideline amount is then calculated proportionately, based on the percentage of the total combined income earned by each parent. If a mother who owes a father child support earns 74% of the parents’ total combined income, she is ordered to pay 74% of the Support Guideline figure. When parents share custody equally, the higher earner pays support to the other parent, but with a discount of up to 20% to compensate for the expenses of shared custody.

Recently, a Pennsylvania father who thought he was entitled to a reduction in his support payment moved for modification of his support order and was frustrated when the support hearing officer instead increased the support payment amount. Brikus v. Dent, 5 A.3d 1281 (Pa. Super. 2010).

The mother did not request any changes prior to the hearing and the father’s request was specifically for a decrease in his obligation. On appeal, the Pennsylvania appellate court affirmed the hearing officer’s decision. The court held that it was not necessary for the mother to request an increase or to take any position prior to the hearing. Instead, the court found that support hearing officers have the obligation and authority to determine the parties’ current incomes and set an appropriate order based on those calculations. Hearing officers also may “attribute” income to parents who are found to be earning less than their actual income earning capacity.

When parents’ incomes go up or down their child support orders can be modified if either parent files a petition with the court requesting modification. Before filing a request for a change in your child support, it is wise to check with a lawyer to review the possible results.

School Transportation

School Transportation & Custody Issues

Parents who share custody equally and live in the same school district are entitled to have their children bussed to both homes as a result of a central Pennsylvania father’s appeal to the Commonwealth Court this year. Watts v. Manheim School District, 84 A.2d 378 (Pa. Cmwlth. 2014)

In the case appealed, the parents lived in separate residences in the same school district, sharing custody of a middle school age child on an alternating weekly schedule. As a cost cutting measure, the school district stopped providing students with bus transportation to multiple locations, and designated the child’s bus stop as the one at his mother’ home. The school district’s decision forced the father to hire a care giver to drive the child to school because the father’s work schedule prevented him from driving the child himself.

The Court noted that there was a regular bus route through the father’s neighborhood, with a bus stop the child had previously used. The Court also noted that the Pennsylvania School Code requires that when school districts elect to provide free bus transportation, they must do so for all “resident” students. The School Code further requires that no student shall travel more than a mile and a half to the bus stop. Observing that resident students cannot demand “door to door” transportation, the Court found that the mother’s home was more than a mile and a half from the father’s home and the district could not rely on the mother’s bus stop during the father’s periods of physical custody of the child. Emphasizing that the child qualified as a “resident” student at each of his parents’ homes, the Court ordered the district to resume busing to and from both homes.

Throughout the opinion, the Court referred to the custody arrangement as “equal” and “equally shared.” The Court also recognized that school districts have very broad discretion in how they manage their transportation systems. It is not clear what rights parents may have to bus transportation from both homes when custody is not equally shared. But the Court’s firm recognition that a child is a resident of a school district, whether or not his home is a “primary” residence, leaves room for parents with split, but not equal custody, to seek busing to both homes.

 

School Daze – Parental Responsibilities for Children’s Schooling

School Daze – Parental Responsibilities for Children’s Schooling

With the fall school days approaching, parents need to know their rights and obligations regarding their children’s schooling.

The Pennsylvania Public School Code mandates that all children must either attend school or pursue a course of home study. While most Pennsylvania children begin school well before they are eight years old, Pennsylvania law does not actually compel any education until a child is eight years old. Once parents elect to enroll their child in school or to commence a course of home study, the child is required to attend continuously until he or she graduates or turns 17 years of age. Children ages 14 through 16 can drop out of school only upon meeting fairly complex requirements including administrative approval, work or other education attendance and, in limited cases, farm work. And children who have not graduated from high school are entitled to attend, if they chose, until they are 21 years old.

A mixture of state and local revenues provides the funding for Pennsylvania school districts. Given the differences in tax revenue from one locality to another, school districts range from the very wealthy to the very poor. The differences in the quality of education sometimes can motivate parents to relocate, or to relocate their children in order to have the advantage of a better school district.

The Pennsylvania Supreme Court has recognized that children reside in a school district where their custodial parent actually lives. In the test case that came before the Court, a married mother moved from one county to another in order to live near a private school where her oldest child was enrolled. The mother’s younger child had special needs; the mother sought special education services from the local school district. Because the couple remained married and the father stayed in their marital home, and because the mother’s relocation was focused entirely on being closer to the eldest child’s private school, the local school district decided that the younger child was not a true resident of their school district. Although the mother changed her voter registration and address to the apartment address, she admitted that she only intended to live in the apartment for 7 years and planned to return to the marital home when the eldest child graduated from the private school. She also acknowledged that she returned, with both children, to the marital home every other weekend, and that the children’s father continued to live in the marital home.

The Pennsylvania Supreme Court commenced its analysis stating that if a child relocates from the marital home with one parent to reside in an apartment with another parent, the child is entitled to attend school in the district where the “custodial parent maintains a residence,” which need not be a primary residence or a permanent home. The continued presence of the other parent in the marital home does not establish the marital home as the child’s residence according to the Court. The Court presumed that adults and children can have more than one residence if they regularly stay in more than one home. It is important to note that the Court placed great weight on the fact that the mother and children did not “merely visit” the apartment. Rather, they stayed there during the day and they slept there at night. They received mail and phone calls at the apartment and the children’s clothing, books, and supplies were kept there, as well.

In a similar but different case, the Pennsylvania Commonwealth Court refused to recognize a mother’s apartment as the children’s residence. In that case, the children’s father died and the mother continued to live in the family apartment for several years. After remarrying, the mother and children moved to new home in an adjacent school district and the children changed schools for a few years. Preferring the original school district, the mother returned to the family apartment, and re-enrolled the children in their original school district. She received mail at the apartment, and changed her voter registration and driver’s license to the apartment address, but she only stayed there an average of two nights per week. The other nights, she and the children stayed in their new home and commuted back to the original school district. Under those circumstances the Court found that the apartment was not really the residence of mother. The Court noted that children are entitled to attend school where their parents reside; and that the focus in a dispute about school attendance entitlement should be on the parent’s actual presence in the claimed residence. Because the mother did not sleep in the former family apartment most nights, the Court found that she was “school shopping,” and agreed that the original school district where the apartment was located was not obliged to re-admit the children to attend there.

Finally, in a case that focused on a school district’s obligation to provide bus transportation to children to a private school, the Commonwealth Court found that where children were in equally split custody, living in a “50/50 custodial arrangement,” the children’s father was a “resident” of his school district entitled to have the children bused by his district to their private school. During their custodial periods in their mother’s home, her school district was obliged to provide the busing.

When parents share custody equally, it appears that they have a school choice and can pick their child’s school district. Otherwise, children are considered to reside only in the school district where their custodial parent actually resides.

Cites

See 24 P.S. §13-1326 for definition of compulsory school age (age 8 to 17).

See also 24 P.S. §§13-1301-02, 13-1327, 13-1330 on residence and attendance.

See In re Residence Hearing Before the Bd. Of School Directors, Cumberland Valley, 744 A.2d 1272 (2000)(mother’s residence in apartment qualifies children to attend school).

Cf. Mathias v. Richland School District, 592 A.2d 811 (Pa. Cmwlth. 1991)(child cannot qualify as a resident of two school districts).

See also Paek v. Pen Argyl School District, 923 A.2d 563 (Pa. Cmwlth. 2007)(mother found not to be a resident.)

Wyland v. West Shore School District, 52 A.3d 572 (Pa. Cmwlth. 2012)(equal shared custodial arrangement qualifies both parents as residents for busing services).

Child Support Not Linked to Custody in Pennsylvania

Child Support Not Linked to Custody

A father who lost all rights to regular periods of physical custody with his teenage daughter lost his petition to dismiss the child support order, because state law recognizes an overriding obligation on the part of all parents to support their children.

The father’s custody order gave the mother “sole physical and legal custody,” limiting the father’s contact with the child to times and occasions the mother decided were appropriate. In response, the father filed a petition to terminate his support obligations, arguing that the custody order was effectively a termination of his parental rights.

The Pennsylvania Superior Court noted that the case had a long and complex history. The parents had had a tumultuous relationship and separated when the daughter was 10 years old. The father did not see the daughter for more than a year; when he filed for custody rights, the court ordered “reunification counseling,” a process in which a child and parent are reintroduced in a counseling setting after a period of estrangement.

The daughter resisted the counseling, coming to the sessions with a blanket over her head. After five sessions, the counseling was terminated. For the next several years, various attempts were made to advance the father’s custody claims through psychological evaluation and intervention. None of the efforts was successful, and when the daughter was nearly 18 years old, all counseling stopped.

The Superior Court required that the father continue to pay his support obligation, finding that his parental rights had not been terminated and that the daughter had financial needs that both parents were obligated to meet. The court distinguished termination of parental rights from awards of sole custody, noting that when a parent’s rights are terminated, it is as unequivocal as “the death of the child,” and no parental relationship exists following the termination. Sole custody awards, while rare, don’t terminate a parent’s rights. Holding that the duty of child support is “absolute” and is the “equal responsibility of both mother and father,” the court dismissed the father’s appeal and upheld the support order.

Parents whose custodial time is limited often find the unwavering position of the courts on child support to be frustrating. Pennsylvania law is clear in its firm requirement that both parents are responsible to support a child.

Parents who are dissatisfied with limitations on their custody rights must advance their custody claims as best they can in custody proceedings. Parents cannot secure relief from the support court based on the status of their custody case.

Parents’ Rights to Relocate

Parents’ Rights to Relocate

When parents are live in separate households due to divorce or separation, neither parent may relocate with a child of the parties without the written consent of the other parent. Pennsylvania law has long held that a child’s relocation is a decision parents must make together; recently the Pennsylvania legislature enacted sweeping changes that strengthen and clarify those limitations.

First, whether or not a custody order already exists, a relocating parent must have the written consent of the other parent before relocating. A parent who doesn’t have the other parent’s approval must file a detailed notice with the local county court of his or her intention to relocate at least 60 days before the planned relocation. The law provides for some flexibility in the notice period if the relocating parent could not reasonably have known of the need to relocate earlier. The notice must include the proposed new address, phone number, school district, names of the persons who will be living in the new household and the reasons for the relocation.

Then the objecting parent must file his or her detailed written objections within 30 days. Most courts have conciliation and mediation programs that all parents are required to attend in disputed custody cases. If such settlement programs don’t result in an amicable agreement, the parents must move on to a prompt custody hearing before a judge. Judges are not entitled to order parents to live in any particular place, but they do have the authority to decide where a child will live in a disputed custody case. A parent who chooses to relocate always may do so, but he or she may or may not be able to take a child along.

If the non-relocating parent simply ignores the notice, the parent who wishes to relocate must file an appropriate detailed affidavit with the court, indicating that the notice was ignored and must further petition the court for a clear order permitting relocation.

Even when a parent has primary custody of a child, he or she is not free to relocate without a written agreement or court order if the relocation would “significantly impair the right of a non-relocating party to exercise custodial rights.” Since custodial rights include the right to participate in decision-making, any household move that triggers a school change is one which parents should treat as a legal relocation.

Grandparents’ Custody Rights

Grandparents’ Custody Rights

The custody laws passed by the Pennsylvania legislature distinguish “visitation” from “custody.” Visitation is the right to visit a child without removing the child from the custody of the child’s parent or guardian. Custody is the physical possession and control of a child.
The Pennsylvania legislature has granted grandparents custody rights in limited circumstances. Recently, the Pennsylvania Supreme Court held that it was constitutional for the legislature to pass laws permitting grandparents some limited custody of their grandchildren. The laws provide for grandparental custody even over the objections of the natural parents if a judge determines that contacts with a child’s grandparents are in the child’s best interests.

Which Grandparents Qualify?
Only certain grandparents qualify for custody rights. Grandparents are entitled to visitation and/or some regular periods of custody of their grandchildren if their adult child (one of the grandchildren’s parents) is deceased. But grandparents of the living parent are not entitled to custody on the ground that a parent is deceased—only the parents of the child’s deceased parent are entitled to custodial time due to a parent’s death.
Grandparents are also eligible for some visitation and/or custodial rights to their grandchildren if the parents are divorced or have been separated for more than six months. Grandparents generally are not entitled to any court-ordered custody if the parents of the grandchildren are currently married and not separated. However, if a child has resided with his or her grandparents for a period of 12 months or more and is subsequently removed from the home by his or her parents, the grandparents may be granted some custodial rights.

Child Support Obligations

Child Support Obligations

Child support is a shared responsibility of both parents; no matter what custody arrangement exists between parents for the sharing of physical custody of a child, some sharing of financial obligations usually is ordered by the courts if one parent seeks child support from the other parent. In deciding whether a parent must pay child support, the courts focus on the earning capacity of both parents, and not simply on their actual earnings.
The parent with longer periods of physical custody is generally entitled to some child support even if he or she earns more than the other parent. A parent who is obliged to pay support may be entitled to a reduction of up to 20% of the recommended support order if he or she has overnight custody which amounts to 40% or more of the calendar year overnights.
Recently a Pennsylvania father appealed a trial judge’s decision which relieved the father’s former wife from making any contributions to the support of their child. The former wife and mother was remarried and had recently given birth to another child. She was not working and proved that the costs of infant child care and her loss of government benefits would put her at an economic disadvantage if she returned to work. The court relieved her of any child support obligations under the “nurturing parent” doctrine. Pennsylvania law has long recognized that where a parent elects to stay at home with a young child, he or she may be excused from contributing to support. In deciding whether to excuse such a parent, the courts consider the age and circumstances of the child who is the subject of the support proceedings. The courts focus on whether other sources of support are available to the child. Most often the nurturing parent doctrine is asserted by mothers who wish to stay at home with young children; application of the doctrine often places all responsibility for the child’s support on the child’s father.
In the recent case, the father objected to the application of the nurturing parent doctrine where the child being “nurtured” was not the child whose support was at issue and was not a child of the father. The trial judge found that a parent can seek nurturing parent status as to any child for whom he or she has parenting responsibilities. On appeal, the Pennsylvania Superior Court agreed. The Superior Court found that whether the nurtured child was the same child whose support was at issue was not a controlling factor in deciding if the mother was entitled to nurturing parent status. Instead, the mother’s earning capacity and the support otherwise available to the child at issue were the primary issues for the court’s focus.
Many Pennsylvania county courts consider every parent responsible to pay some child support, no matter what their circumstances. Parents who seek relief from child support based on the nurturing parent doctrine are frequently denied relief. But any parent who chooses to stay at home with a young child is entitled to seek relief from the payment of support on the ground that the young child is in need of parental nurturing and the fulfillment of those needs prevents the care-taking parent from earning income.

Child Support for College Students

Child Support for College Students

Pennsylvania law provides that a parent’s entitlement to receive child support from the other parent ends when the child is 18 years old and has graduated from high school. It also ends if the child is emancipated—living independently of both parents, in a self-supporting status. Some exceptions are made for special needs or disabled children.

Some parents enter into agreements regarding the payment of their children’s college tuition and expenses; often when such agreements are drafted, they are part of a divorce settlement. Pennsylvania courts have no authority to order any parent to pay for a child’s college expenses but if parents enter into an agreement, the courts will enforce the agreement.

Recently, a Pennsylvania mother tried to enforce an oral agreement with her ex-husband regarding college tuition for their children. She noted that Pennsylvania contract law does recognize oral contracts; she claimed that she and the children’s father had an oral understanding that they would share college expenses.

The courts agreed that oral contracts are enforceable in Pennsylvania, but declined to extend enforcement to oral college expense contracts made during marriage. The court noted that the parents agreement was the result of many discussions that occurred during their marriage. The court observed that the discussions were based on the expectation by both parties that they would be living together and sharing their incomes. Once their divorce divided them into separate households, with separate housing and other expenses, the court found that neither should be held to their earlier understanding about paying for their children’s college expenses.

Parents who are separated or divorcing can enter into enforceable agreements about their commitment to help their children with college expenses. Such agreements should be written and should be detailed and specific. The parents should discuss and agree upon the location of the potential colleges and the kinds of expenses to be shared—tuition, room & board, books, activities, travel, spending money and car expenses. Not all expenses must be shared; but those that are to be shared should be specified. A written agreement to share “college expenses” is too vague—judges resist interpreting contracts broadly and are reluctant to burden a parent with more than the parent intended to take on. College support agreements also should address what standard of behavior and academic performance is expected of the student, and whether the parents have any voice in where the student will go to college. Finally, such agreements should address whether the parent’s disability of loss of employment excuses that parent from paying. The more detail that is included in such agreements, the more efficiently they can be understood and, if necessary, enforced in court.

Injured Child Does Not Need Independent Guardian

Injured Child Does Not Need Independent Guardian

A severely injured child whose parents sued a hospital and doctors for medical malpractice recently became the focus of separate litigation regarding who should manage the child’s case. The child’s parents hired attorneys who successfully sued the hospital and doctors, winning a $15 million award. But during the appeal, the hospital’s insurance company petitioned the trial court to appoint a separate lawyer to serve as special guardian for a child known at law as a guardian ad litem. A guardian ad litem is a person, usually a lawyer, appointed by the court to represent a minor child’s interest in particular litigation before the court.

The insurance company noted that during the appeal the parties engaged in “excessive settlement negotiations” with the aid of a professional mediator who is a former judge of the Court of Common Pleas of Philadelphia County. The parties reached an impasse in those negotiations when the insurance company offered $7 million, an amount which the insurance company claimed would be sufficient money to support the child for the rest of his life. When the parents and their attorney turned the offer down, the insurance company petitioned for the appointment of a special guardian ad litem for the child, in an effort to turn control of the settlement negotiations over to a lawyer who would not be responsible to follow the parents’ decisions. Claiming that a “substantial possibility” existed that the hospital would win the appeal and the child could be left with nothing, the insurance company argued that the child needed his own independent guardian.

The court denied the insurance company’s request. The court noted that the appointment of a guardian ad litem generally is reserved for extraordinary circumstances and for the kinds of cases where the child’s interest may be directly adversely affected, including proceedings to terminate parental rights and adoptions. Finding that both parents were focused on the injured child’s best interests, the court decided that the appointment of a guardian ad litem would not be proper. Shortly after the court’s decision, the parents and the insurance company came to a settlement agreement.

Parents are entitled to sue on behalf of their children. They may choose the attorneys and manage the case. Only where extraordinary circumstances exist will the courts disturb a parent’s rights to mange litigation for his or her child.