• Our Lawyers Have Over 50 years of Law Experience
  • Aggressive and Personal Representation
  • We Can Help Protect Your Assets

Family Law Information Overview

The attorneys at Fisher and Fisher are experienced in northeastern Pennsylvania Family Law and can help you in all of the following legal areas.

Call Now for a Free Consultation

FAMILY LAW – AREAS WE CAN HELP

DIVORCE

A divorce is a judicial proceeding in which a valid marriage is dissolved. Through the divorce process, a couple’s assets and debts are divided, the custody and support of any children of the marriage, as well as the support of either spouse, are determined, and each party is ultimately granted the legal right to remarry. If you are considering separation or divorce, the selection of an experienced family law attorney is perhaps one of the most important decisions that you will make. Your choice could significantly impact your future.

In Pennsylvania, both fault and no-fault divorces are available. Your attorney can help you determine what type of a divorce to pursue. There are basically two ways to obtain a divorce under Pennsylvania’s no-fault system. The first is a consensual no-fault divorce. Under this system, if the residency requirements are satisfied, a divorce complaint is filed citing that the marriage is “irretrievably broken,” and served upon the non-filing party. The service of the complaint is followed by a 90-day waiting period, called the “cooling off period.” After this 90-day period has expired, as long as the parties have agreed upon all other financial issues, such as the division of their property and alimony, if applicable, the Court will grant a divorce to the parties after they each sign an Affidavit of Consent. The second no-fault option is the non-consensual divorce. If one party will not agree to the divorce, the filing party must wait two years from the date of separation before he or she can seek the entry of a divorce decree. After this period has lapsed, the Court will grant a divorce, even if the other party does not consent, upon a showing that the parties have lived separate and apart for at least two years.

Pennsylvania was previously a “fault” state, in that, to obtain a divorce, one spouse had to prove that the other spouse was “at fault” for the divorce, and that the spouse who was seeking the divorce was, in fact, the “innocent and injured” party. Couples can still obtain a divorce in Pennsylvania on the basis of one or more “fault” grounds prescribed by law, such as abandonment or desertion, adultery, personal indignities, incarceration for two or more years, confinement for incurable insanity for 18 months, bigamy, and cruel and inhumane treatment or physical abuse.

In most divorce actions, there are four basic issues that typically must be resolved:

  • Spousal Support/Alimony
  • Property and Debt Division
  • Child Custody and Visitation
  • Child Support

If the parties can reach an agreement on these issues, then the divorce is uncontested. If, however, the parties cannot agree, the divorce is contested, and the parties may go to trial to resolve these issues. This usually means that a Court will make the final decisions. Alternatives to litigation include mediation or arbitration.

Making the decision to end a marriage is difficult and often very stressful. Working with an experienced family law attorney will help you get through the process, protect your rights and interests and assist you in making the transition to your new life.

Return to Index . . .

SEPARATION

The term “legal separation” has no legal status and is not recognized under Pennsylvania law. However, you and your spouse can voluntarily enter into a Separation Agreement, which is a legally binding document that can protect both parties during the period of separation. Such an Agreement can address a wide variety of issues, such as spousal and child support, alimony, child custody arrangements and visitation schedules, as well as the division of your property and debts. In Pennsylvania, spouses can be considered to be “separated” even if they still reside in the same household. The date of separation can have a significant impact on the valuation of marital assets in certain cases.

A Separation Agreement can address many marital issues, including:

  • Division of Property
    Often, when couples separate, the party who is leaving the marital residence will desire to take certain household furnishings and other items of personal property. The Separation Agreement can establish what items can be removed, and whether this division of property is permanent, or intended to be temporary and simply for the convenience of the parties.
  • Support
    A Separation Agreement can provide for child and/or spousal support payments during the period of separation. The dependent spouse can rely upon the fact that he or she will be supported during the pending divorce proceedings.
  • Custody
    As with support, custody arrangements can also be made through a Separation Agreement, so that the party who has moved out can be assured that he or she will maintain contact with his or her child. The Agreement will generally designate which party has primary physical custody of the child, and can also include a detailed visitation schedule.

Return to Index . . .

DIVISION OF PROPERTY

Unless you and your spouse signed a Pre-Marital Agreement, the division of marital property in a divorce begins with a presumption of an equal sharing of the marital assets under Pennsylvania law. This means that spouses will equally share in marital assets that are acquired between the date of their marriage and their date of separation. However, in most cases, the actual property distribution does not end up being equal. The Pennsylvania Divorce Code lists a number of factors that a Court can consider in determining whether a deviation from an equal sharing of the marital assets is warranted. Marital misconduct or fault is not a factor in property division.

Some of the many factors that a Court may consider in determining the equitable division of marital assets in Pennsylvania include:

  • The age and health of the parties
  • The length of the marriage and any prior marriages
  • The parties’ income or earning capacity, vocational skills, employability, estate, liabilities and needs
  • The contribution of one party to the education, training or increased earning power of the other party, including the contributions of a stay-at-home parent
  • The opportunity of each party for future acquisitions of capital assets and income
  • The sources of income of both parties, including medical, retirement, insurance or other benefits
  • The value of the party’s property, assets, gifts or inheritance which is solely owned by him or her, and is not part of the marital estate
  • The standard of living of the parties established during the marriage
  • The economic circumstances of each party, including federal, state and local tax ramifications at the time the division of property is to become effective
  • Whether the party will be serving as the custodian of any dependent minor children

A marital asset is generally any property that is acquired from the date of marriage through the date of separation, regardless of how it is titled or owned, or who paid for it. These assets may include real estate, household furnishings, vehicles, boats, IRAs, 401(k) accounts, pension plans, cash, investments, stocks, bonds, annuities, business interests and other assets. In most cases, property owned before the marriage, property acquired after the date of separation, and gifts or inheritances received by one spouse during the marriage, are not considered marital property. However, any increase in the value of an asset that was brought into the marriage by either party is generally considered a marital asset. Marital debts such as mortgages, car loans, home equity loans and credit card debt must also be apportioned between the parties.

When a couple has significant marital assets, such as personal property, real estate, a family business, large or concealed debts, trusts, real property in other states, joint and separate accounts, investments, insurance, pensions and other assets, the distribution of property and division of debts can become quite complicated. In any divorce, especially one involving complex property issues, an experienced family law attorney can offer valuable guidance and advocacy.

If the parties cannot agree on the division of their marital assets and debts, the Court will determine the distribution of the marital property in a fair and equitable manner based on the specific circumstances of the divorce. Equitable, however, does not always mean equal. Once the Court decides which assets are considered marital property, it must determine the value of the assets and then allocate the property between the spouses.

Certain types of property may generate complex valuation and distribution issues, and divorcing couples should be aware of the issues that these assets may present.

  • Marital Residence
    The primary residential real estate owned by the parties is often the marriage’s largest asset. Dealing with its division can be complicated, particularly when there are children involved. Courts often favor permitting the custodial parent to retain the home. However, in doing so, arrangements should be made so that the non-custodial parent receives adequate compensation for the home’s value, as well as provisions for mortgage payments, tax liabilities, insurance premiums and home maintenance and repairs. When these issues cannot be resolved, the couple may be forced to sell the home and divide the proceeds.
  • Pensions
    Pensions are also usually a significant marital asset. In the divorce, the Court may enter a Qualified Domestic Relations Order (QDRO) requiring the administrator of the pension to make payments to both the employee spouse and the non-employee spouse.
  • Family-Owned Businesses
    The division of a family-owned business presents complex allocation and valuation issues. As with the marital residence, if there are insufficient marital assets to compensate the non-retaining spouse adequately, a forced sale or a long-term buyout may be necessary.

Many couples have a difficult time reaching an agreement about how to divide their property and debts. Because the ultimate division of property depends on the complexity of your assets and liabilities, it is important to consult with an experienced family law attorney for assistance.

Return to Index . . .

CHILD CUSTODY

Parents who are divorcing have a great deal to consider, and child custody and visitation issues are usually at the forefront of their concerns. Making custody decisions is always the most painful part of a divorce, and being clear about your options from the start may make these tough decisions easier. Knowledgeable advice and skilled representation from an experienced family law attorney can assist you in your pursuit of a fair custody arrangement.

There are two basic types of custody in Pennsylvania: legal custody and physical custody. Legal custody is the right to make major decisions for the child in areas such as health care, education, discipline and religion, and is shared in most cases. Physical custody determines where the child will reside, and involves making day-to-day decisions for the child’s care and general welfare. Generally, one parent will have primary physical custody, meaning that the child lives with that parent the majority of the time, and the other parent will have partial physical custody. However, some parents have what is called “shared” physical custody of their children, which means that the children divide their time equally between both parents.

Custody disputes usually arise when a divorcing couple with children decides to separate. While some couples immediately reach an agreement on short or long-term custody, others require court intervention for the intermediate or final decision. A custody order is a court order establishing the type of custodial arrangement that the parents will follow, and is entered either by a stipulation or an agreement between the parties, or as the result of a custody hearing. The order generally provides a custody schedule, which may address weekly visits, vacations and holidays, as well as transportation issues. The parties’ custody arrangement can also be established in the Separation Agreement.

If the parties are unable to reach a custody agreement, most Courts will order a custody evaluation prior to trial. A court-appointed mental health professional, such as a psychologist or a social worker, usually conducts this custody evaluation and makes a recommendation to the Court. The evaluation may include interviews with both the parents and the children; observation of the children; conversations with teachers; and possible psychological testing of both the parents and the children. When a custody evaluation has been ordered, the Court usually will not enter a final custody decision until the evaluation has been completed.

Pennsylvania courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child. In making this determination, the Court may consider a variety of factors, including the child’s age and attachment to the parent who has been the primary caretaker; parental physical and mental health; any history of domestic violence; any special needs (such as medical care and psychological counseling) that your child might have; the work schedules and availability of each parent; and the child’s wishes, depending upon the age of the child and the motivation for his or her preference.

Once custody has been established through an agreement or by court order, parents may seek Court involvement to modify the established arrangement. The parent making the request must show a substantial change in circumstances to warrant such a modification. Additionally, states that follow the Uniform Child Custody Jurisdiction Act will only consider requests for modification if they occur in the state in which a child has an established residence, in order to prevent forum shopping and custody-motivated child relocations.

The resolution of child custody and visitation disputes requires divorcing parents to act rationally in their child’s best interests at a time when they are facing the overwhelming stress of divorce. Early involvement by a family law attorney with knowledge and experience in child custody law can help you get through this difficult process.

Return to Index . . .

RELOCATION

Our modern society offers people a greater freedom of mobility than ever before. However, the relocation of a child resulting from a divorce or seeking modification of an existing custody arrangement can become a complicated legal matter. Consulting with a skilled family law attorney is critical.

Relocation is a complicated legal issue in Pennsylvania, especially when the move is a sufficient distance from the non-custodial parent and will affect his or her ability to see the child with any regularity. If your move has an impact upon the other parent’s ability to maintain contact with the child, you will most likely require Court approval to relocate the child. Otherwise, there could be serious ramifications.

Relocation cases in Pennsylvania are generally difficult to resolve out of court, especially where the custodial parent is moving a significant distance. The parent who is moving away must not only prove that the relocation is in the best interest of the child, but also that he or she was moving for legitimate reasons, and not solely to frustrate the custodial rights of the other parent. Although Court permission is still required, Courts are now more inclined to permit relocation.

Return to Index . . .

CHILD SUPPORT

A child’s biological parents have a legal obligation to financially support the child, regardless of whether the child’s parents were ever married. That obligation generally exists until the child reaches “the age of majority,” or becomes emancipated, with some exceptions for children attending college and disabled children. Emancipation means that the child is beyond the control, custody and care of his or her parents, and can include such events as the child marrying or becoming financially self-sufficient, or by the entry of a Court order. When parents divorce or are not married, the non-custodial parent is often obligated to pay child support. Support is owed whether the child lives with his or her other parent or a third party, and whether or not the custodial parent can afford to support the child without assistance. In some instances, support may be owed even where the parents equally share physical custody.

Pennsylvania has adopted guidelines for determining child support obligations. Courts use these guidelines to establish the amount of support. Additional provisions for medical costs and insurance are generally added to the basic amount calculated under the state guidelines. For the vast majority of parents in Pennsylvania, child support is determined by the formula set forth in the Pennsylvania Support Guidelines. This formula provides the basic child support obligation, based on the total monthly net income of the parties and the number of children. Each parent’s support obligation will be a percentage of that total figure, based on the parents’ relative incomes. The guidelines only consider the parents’ income, and the parties’ expenses are not generally considered in calculating the support obligation, unless a parent has what is considered to be an “extraordinary expense.” In addition to the basic support obligation, other expenses, such as child care, summer camp and medical expenses, are usually shared by the parties.

Child support payments generally begin when a Court enters an order requiring the payment of support, and may be ordered at any stage of the divorce proceedings. The parties may voluntarily agree on the amount of support. When parents have never married, the custodial parent may petition for support from the other parent. In connection with that proceeding, DNA tests may be necessary to establish paternity.

Child support orders can be modified to meet changing needs in the parents’ or the child’s life. Either parent can petition the court for a modification of the support obligation. The Court will then determine whether there has been a significant and material change in circumstances either concerning the child’s needs or the payor parent’s ability to financially meet his or her obligations. Parents receiving child support may be able to increase the support they receive when the payor parent’s income increases, or where the child has specific needs, for example, tutoring or educational expenses, medical treatment or therapy. Payor parents may be able to decrease the amount of future support payments if they lose their job, suffer a reduction in income or when the custodial parent’s income increases. Federal law prohibits states from forgiving past due child support payments. Courts are reluctant to reduce child support awards, and payor parents may have an earning capacity imputed to them, whether or not their actual earnings reflect that amount.

Parents must meet their child support obligations. Parents who do not pay child support, pay less than is required or pay sporadically, may be subject to contempt proceedings, fines and even imprisonment. Contempt proceedings are one of the most common actions taken against parents who fail to pay child support. During this process, the payor parent is charged with failing to comply with a court order. These proceedings can be civil or criminal. In civil proceedings, the parent can be ordered to serve an indefinite period in jail until he or she pays the support that is owed. Upon paying the support arrearages, the parent is released from jail. In criminal contempt proceedings, the parent is sentenced to a set amount of time in jail as punishment for failing to comply with the order. The parent cannot pay the back support to shorten his or her jail sentence. The key to holding a parent in contempt of a child support order is finding that the parent has the ability to pay child support, but willfully failed to do so. Parents who do not have the ability to pay their support obligation may have a successful defense to a contempt proceeding if they can prove that they genuinely could not pay.

Parents who owe child support arrearages may also be subject to wage garnishment. The Court can order an employer to withhold a certain percentage out of an employee’s paycheck each pay period to meet his or her child support obligations. Tax refunds and lottery winnings can also be subject to garnishment.

Federal and state governments have taken action to punish those parents who cross state lines in an effort to escape their support obligations. States are required to give full faith and credit to valid final court judgments issued in other states—including child support orders. Therefore, parents cannot seek out a new jurisdiction to gain a more favorable child support award. Under the Uniform Interstate Family Support Act (UIFSA), the Court who issued the child support order retains continuing exclusive jurisdiction, which means that if the parents seek to make changes to the original order, or seek to have it enforced, they must petition the Court that originally issued the order. UIFSA provides state courts with long-arm jurisdiction in case one parent relocates to another jurisdiction. Further, in an effort to reduce welfare costs, the federal government has passed legislation to criminalize willful failures to pay child support. Under the Child Support Recovery Act and the Deadbeat Parents Punishment Act, parents who fail to pay child support can face federal penalties, including fines and incarceration.

Enforcing the obligation to pay child support is a national priority. Federal and state laws have been enacted to make enforcement and collection of child support easier. Delinquent child support payments can put a strain on families and society as a whole. Contact a family law attorney in your area to learn more about local child support laws. An experienced child support attorney can review your child support matter and help you find the best solution to meet your child’s needs.

Return to Index . . .

SPOUSAL SUPPORT and ALIMONY

Spousal support, alimony pendente lite (APL) and alimony are all forms of support or maintenance ordered by the Court for either a reasonable living allowance to pay for living expenses and the support needs of a party who is unable to provide for his or her own support, such as mortgage payments or rent, provision of medical insurance, food, gas, clothing and utilities, or monies to help fund divorce litigation, such as filing fees, costs and related expenses.

A party who is separated may be entitled to spousal support during the period of separation. One factor in determining spousal support is “financial entitlement,” which is based on the parties’ income and earning capacity. Another consideration is that party’s “legal entitlement,” which is related to marital misconduct, such as adultery, desertion, incarceration, cruelty and indignities, all of which can be used as a defense to the payment of spousal support. Once the divorce proceedings have been filed, a spouse in need of financial support may seek alimony pendente lite, during the pendency of the litigation.

Alimony is financial support that commences upon the entry of a final divorce decree. The purpose of alimony is two-fold. It provides the Court with a mechanism to equalize the incomes of the two parties after a divorce. It is also designed to provide the spouse who makes less income (the dependent spouse) with a fresh start. However, there are numerous factors that affect the entitlement, amount and duration of alimony payments, including the existence of substantial marital assets that can be awarded through equitable distribution, the earning capacity, health and education level of each party, the length of the marriage and “fault” issues, such as abandonment and adultery. Additionally, alimony awards can vary greatly from county to county.

Return to Index . . .

MEDIATION

Not all divorces involve what can be a lengthy, expensive, difficult and emotionally draining litigation process. Many marital issues can be resolved through divorce mediation. Mediation is a process whereby a couple meet with a third party, called a “mediator,” who is specially trained to help the parties negotiate their own agreement on the particular issues of their case, such as property division, child custody and support, and alimony. Mediation can potentially save the parties a significant amount of time, emotional distress and money.

Mediation can be a successful alternative to litigation. It is a valuable tool when the two spouses are able to work productively through their marital issues. However, not everyone is a candidate for mediation. This process requires two people who can communicate with each other, with the help of an experienced mediator.

Return to Index . . .

PROTECTION FROM ABUSE ORDERS

Pennsylvania has enacted a Protection from Abuse statute, which protects any person in a relationship, regardless of whether they are married, from harassing, abusing, hitting or stalking behaviors. Protection from abuse (PFA) orders are often sought in divorce cases when one of the parties accuses the other of spousal or child abuse. After a hearing on the merits, a Temporary PFA order may be made into a final Order which will remain in effect for a period of up to 18 months. PFA orders may order a party to refrain from all physical contact, as well as telephone and email communication.

To obtain a PFA order, a party has to prove that he or she is in fear of imminent bodily injury, that they have been stalked or threatened, and that they are in fear. You cannot seek protection from a future threat—there must be a threat of imminent abuse. In the appropriate case, the order can provide for immediate eviction from the home and the relinquishment of any firearms. After a hearing, the PFA order can continue for a period of up to three years from the date that it is entered. Charges of spousal or child abuse are often made in the early stages of a domestic dispute, but there may be long-term implications to the entry of a PFA order, and you should contact an experienced family law attorney to discuss these ramifications.

Return to Index . . .

ANNULMENT

A marriage can be declared invalid by either party if his or her conduct provides the basis for an annulment. Pennsylvania law distinguishes between two types of marriages that can be annulled—those that are void from their inception and those which are valid, but voidable.

The following circumstances constitute grounds for an annulment based on a marriage that is void from its inception; provided, however, that there is no cohabitation after the parties learn of the “impediment” to their marriage:

  • One party was, at the time of the purported marriage, validly married to another person; or
  • The parties to such marriage are related within certain degrees of consanguinity. For example, you cannot marry certain relatives, such as your mother, your father, your first aunt, your first uncle, your sibling, your child, your grandchild and your first cousin; or
  • Either party was incapable of consenting by reason of insanity or mental disorder, or otherwise lacked the capacity or intention to enter into the marriage; or
  • Either party to a purported marriage was under 18 years of age.

The following circumstances can render a valid marriage voidable, and thus also constitute grounds for annulment:

  • One party is under 16 years of age, and did not have the express approval of the Court to marry; or
  • Either party was 16 or 17 years of age, and did not have parental consent or authority from the Court to marry, and the marriage was not subsequently approved upon reaching 18 years of age, as long as the action for annulment is commenced within 60 days after the marriage ceremony; or
  • A party was intoxicated by alcohol or drugs, and an action for annulment is commenced within 60 days after the marriage ceremony; or
  • “Natural and incurable” impotence was not known to the other party prior to the marriage; or
  • A party married under the influence of fraud, duress, coercion or force, and there was no voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.

You should contact an experienced family law attorney who can advise you on whether an annulment is the proper legal course of action, and whether the circumstances of the marriage constitute valid grounds for an annulment.

Return to Index . . .

COMMON LAW MARRIAGE

Common law marriage was abolished in Pennsylvania in 2005. As for common law marriages properly entered into prior to January 1, 2005, these marriages will remain valid if proven under the law.

In order for a common law marriage to be held valid, the party must prove that the spouses, before two witnesses, declared their present intent to be married. The spouses may also be able to prove a valid common law marriage by showing that they held each other out to be husband and wife to the community at large, for example, by using the same last name, by filing tax returns as married persons, by introducing each other as husband and wife and by paying bills or buying property in joint married names. There is no magic formula or language required to prove that you are married, and each common law marriage is evaluated on a case-by-case basis.

Return to Index . . .

PRE-MARITAL AGREEMENTS

As people are getting married later in life, or entering into second and third marriages, they are bringing an accumulation of assets into the marriage. While that property is generally not considered to be a marital asset in Pennsylvania, the increase in the value of that property during the marriage is deemed marital. If you wish to keep your acquired assets separate, or if you have other legal issues that you wish to address before marriage, you and your future spouse can enter into a Pre-Marital or Pre-Nuptial Agreement.

A Pre Marital or Pre-Nuptial Agreement is a contract between persons who plan to get married. The primary purpose of this agreement is to protect the assets or income of the parties. Generally, couples will enter into such an agreement when one or both of the parties have substantial financial resources or business assets which have been accumulated before the marriage, they have children from prior marriage whose inheritance they are trying to protect or they have a large inheritance in their own name or expect one in the future. Each party has the opportunity to consult with his or her own attorney when negotiating the agreement. A Pre-Marital Agreement is a binding contract which will dictate the terms of a divorce settlement in the event of a subsequent divorce, and may also address spousal support and alimony.

Return to Index . . .

GRANDPARENTS’ RIGHTS

Pennsylvania law provides that grandparents may be granted reasonable custodial or visitation rights under the following circumstances:

  • When a parent is deceased
    If a child’s parent is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights to the child, or both, by the Court if it is found that the visitation is in the child’s best interest. Generally, the more contact that the grandparents had with the child before the death of the child’s parent, the more custodial time the grandparents will be given.
  • When the parents are separated or divorced
    After a divorce complaint has been filed by a parent, or when the parents have been separated for at least six months, the Court may grant reasonable partial custody or visitation rights to the child, or both, if it is in the child’s best interest and it would not interfere with the parent-child relationship. Again, the Court will consider the amount of contact between the grandparents and the child previous to the filing of the petition.
  • When the child has previously resided with grandparents
    If a child has resided with his or her grandparents or great-grandparents for a period of twelve months or more, and is subsequently removed from the home by the parents, the grandparents or great-grandparents may petition the court for partial custody or visitation rights to the child, or both. The best interests of the child will be considered, and these rights will only be granted if it will not interfere with the parent-child relationship.

Return to Index . . .

PATERNITY

Paternity is the legal and social acknowledgement of the parental relationship between a child and his father.

At common law, a child born during a marriage was presumed to be the husband’s child. This presumption could be rebutted by evidence to the contrary.

Establishing Paternity

Where paternity of a child is in issue, any party in interest, the mother, the father, or the child, can ask the court for a determination. That means litigation can be brought by a private party or by the state. A private action for paternity is usually brought by the mother in order to get support. The state will bring an action through a prosecutor’s office when the mother applies for public assistance in order for the state to be reimbursed for the aid given.

A person identified as the child’s father in paternity suits is called the “putative father.”

When the suit names the putative father as a defendant in a paternity case, he has a choice of either consenting to the entry of a paternity judgment or contesting the action.

Acknowledging Paternity by Consent

If the putative father consents, he would sign an Affidavit Acknowledging Paternity, which would establish the legal relationship between the father and the child. When the putative father consents to a paternity order, he consents for life. Most courts will not allow him to escape the consequences of the order, which includes child support, even if it is later proved that he is not the child’s biological father. If you consent to being named as the child’s father, be sure that you are willing to live up to that responsibility no matter what you may learn later. That is why it is imperative that you seek the advice of an attorney in your area before consenting.

DNA Testing

If the putative father denies that he is the father or is not sure, DNA tests based on a cheek swab conducted on him, the mother, and the child can indicate a probability of paternity. The tests can exclude a man who is not the biological father and show the likelihood of paternity if he is not excluded.

DNA testing has become the most powerful test for determining paternity and is admissible in paternity trials. The percentage of probability varies from state to state, but it is usually from 95 to 99 percent. That means that if the test determines that the probability is that percentage or higher, paternity is presumed. The burden is on the putative father to rebut the presumption, a very difficult task.

Uniform Parentage Act

Although all states have some sort of uniform parentage act, only Delaware, Texas, Washington, North Dakota, Utah, Oklahoma, and Wyoming have enacted a version of the most recent law, the Uniform Parentage Act of 2002. This Act provides a scheme for voluntary acknowledgement and standards for genetic testing.

Refusing the DNA Test

Most states have laws that give courts the power to order the putative father to submit to DNA testing. You can be found in civil contempt for refusal to obey a court order. This can mean a fine and/or jail time.

Paternity can be established by default when the putative father fails to attend a court hearing or go for testing and was properly served with notice. Paternity can also be established in some states by publication of the putative father’s name in the newspaper. Check with an attorney in your state about what happens if you refuse to take the test.

The Benefits of Establishing Paternity

In addition to child support, paternity establishes emotional, social, and economic ties between the father and the child. Once paternity is legally established, the child gains certain legal rights and privileges.

Special reasons for establishing paternity:

  • Benefits – The child may be eligible to an inheritance, medical and life insurance benefits, and rights to social security and veteran’s benefits.
  • Medical history – It is crucial to the child’s health for the doctor to have knowledge of the father’s medical history. Knowing the family’s full history of diseases, illnesses, and birth defects can help the doctor if the child becomes sick.
  • Identity – It is important for the child to know who his or her father is. This will help make the child more secure.
  • Father figure – Studies have shown that fathers play an important role in the lives of their children. Children who have a father figure in their lives are more likely to stay in school and avoid drugs and crime. They are also more likely to grow up to be responsible adults.

Death of the Father Before Paternity is Established

Genetic testing can still be done if some genetic material of the father, such as blood or tissue sample, is available. It might also be possible to do genetic testing on the paternal grandparents.

Paternity Fraud

Paternity fraud occurs when a man is falsely identified as the only possible biological father of a child because the mother withholds information that there may be more than one putative father. That is why it is very important that if you are served with paternity papers that you insist on DNA testing. Through DNA, a large number of men have discovered that the child was not biologically theirs. Estimates reveal that almost 33 percent of men who have taken DNA tests are found not to be the biological father of the child.

Statute of Limitations

Some jurisdictions have placed a statute of limitations on bringing an action for paternity. Therefore in order to protect your rights as a father, mother, or those of your child, it is important that you check with an attorney in your state regarding paternity laws.

Return to Index . . .

TERMINATION OF PARENTAL RIGHTS

Circumstances that can constitute grounds for the involuntarily termination of parental rights include:

  • Abandonment for a period of at least six months immediately prior to the filing of a Petition to Terminate Parental Rights; or
  • Incompetency and neglect; or
  • The party is not the child’s biological parent; or
  • The child is in the custody of an agency because the parent(s) have disappeared or the parents’ identities are unknown for a period of three months after the child is found; or
  • Failure to remedy conditions six months following the removal of a child by an agency; or
  • Newborns under age six months, if the parent fails to maintain contact or financially support the child for four months and is not married to or living with other parent; or
  • Rape and incest—The parent is the father of a child conceived as a result of rape or incest; or
  • Twelve months have elapsed following the placement of the child with an agency, and the conditions warranting such placement have not been remedied.

Factors that typically cannot be used as grounds for termination of parental rights include mental illness or incarceration of the parent, and where the child is in need of welfare or social services, but the parent is taking steps to remedy the conditions which led to the agency’s removal of the child from the home.

A birth parent can voluntarily relinquish his or her parental rights by filing a Petition to Terminate Parental Rights if the child is under age 18 and has been in the care of an agency for a minimum of three days, or an adult has filed a Report of Intention to Adopt. However, it is generally against public policy for a parent to voluntarily relinquish his or her parental rights without simultaneous procedures filed by another party to adopt the child. This policy ensures that minors will always be financially supported by adults who are either legally obligated to support the child, or who choose to adopt and support the child.

Return to Index . . .

ADOPTION and FOSTER CARE

Adoption is the legal transfer to and assumption by a third party through the Court system of all of the parental rights which a biological parent has to a child, after the termination of that biological parent’s rights. All legal obligations of the biological parent are assumed in their entirety by the adoptive parents, including the responsibility for the care and supervision of the child, his or her nurturing and training, his or her physical and emotional health, and his or her financial support. An adopted child has the same rights of inheritance as a biological child.
With regard to foster care, foster parents now have the right to file a petition to adopt a foster child in their care upon the termination of the biological parents’ legal rights.

Return to Index . . .

CHILDREN and YOUTH SERVICES

Children and Youth Service agencies can obtain custody of a child in the following ways:

  • Consent of the parent or guardian
    A parent can temporarily place a child in the custody of the agency for 30 days or less. The agency can extend this period for longer than 30 days by obtaining a court order. During the initial 30 day period, the parents can withdraw their consent and have the child returned to them upon request.
  • Dependency Actions
    An agency may file a Petition to have the child declared dependent if the child is without proper parental care or control.
  • Delinquency Actions
    These actions are related to juvenile delinquency matters, which are governed by the criminal code.

When a child welfare agency is investigating allegations of neglect or abuse, we will help you keep your family together. If your child has been removed and placed in foster care or another environment, we will work with you to have the child returned home, and will aggressively protect your rights, as well as the rights of your child, so that you are reunited with your child as quickly as possible.

Return to Index . . .

 

For excellent service in family law matters, contact the Poconos highly-acclaimed
Monroe County, PA law firm – Fisher & Fisher Law Offices.