Propaganda From The Legal Intelligencer on Family Court

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THIS IS FROM AN ARTICLE POSTED IN THE LEGAL INTELLIGENCER

Family Law and the Pennsylvania Supreme Court
James R. Nixon Jr. 03/24/2015

In a perfect world, divorce, custody and support proceedings would wrap up at the trial court level, and the parties involved could move on to the next chapter of their lives. As all family law practitioners are too well aware, though, many cases can drag on for quite some time, due to unique case complexities, court scheduling backlogs and contentious situations among parties. Delays in the process are not only difficult for the parties involved (especially children), but can also end up being quite costly for the litigants.

These delays occur despite the fact that Pennsylvania’s trial courts are handling more cases than ever before, and at a faster pace than seen in decades past. However, when a case is taken to the appellate level, it can delay the final outcome for as much as a year or more. Accordingly, it is worth taking into account how the Pennsylvania Supreme Court, the state’s highest court, is adjudicating family law cases.

The state Supreme Court, the oldest in our nation (almost 100 years older than the U.S. Supreme Court), with the ability to accept appeals from both the Superior and Commonwealth courts, has the final say on any case it chooses to hear. Unlike the Superior Court, for example, which must accept appeals, the Supreme Court can choose whether to grant allowance of appeal. As a result, when the Supreme Court does grant allowance of appeal, the cases it chooses are closely watched by attorneys to determine if there is a trend toward a certain issue that could greatly impact their clients.

With the exception of agency cases on appeal from the Commonwealth Court, the Supreme Court issued just one family law opinion in 2014. In December 2014, Justice Max Baer authored the opinion in In re D.C.D., 105 A.3d 662 (Pa. 2014). In that case, the Supreme Court held that the Superior Court erred in reversing a trial court’s termination of a father’s parental rights as a result of an agency’s failure to provide reasonable efforts to enable the father to unify with his child while the father was incarcerated. The court said nothing in the language of the Juvenile Act prohibited the granting of a petition to terminate parental rights as a consequence of an agency’s failure to provide reasonable efforts to a parent to unify with a child when the parent was incarcerated, among other factors. The father in question had been incarcerated for most of the child’s life, was to remain incarcerated for years, and was unable to perform his duties as a parent. The child had bonded with her foster family, who wanted to adopt her.

Again, with the exception of agency cases on appeal from the Commonwealth Court, the Supreme Court granted allowance of appeal in family law cases only once in 2014, and once more so far in 2015. In In the Interest of L.Z., 96 A.3d 989 (Pa. 2014), the court decided to hear the issues of “whether the Superior Court, in holding that a parent may only be designated a perpetrator of abuse if the child is ‘in the parent’s care at the time of the injury,’ disregarded the Child Protective Services Law” and “whether the Superior Court erred … in vacating the trial court’s finding of abuse against mother.”

In A.S. v. I.S., 2015 Pa. LEXIS 215, the court decided to hear the issues of “whether … a former stepparent who has … established equal parental rights as the children’s natural parent—and, per a court order, equally shares … custody with the natural parent—should be relieved of the duty to contribute to the children’s support” and “if this court finds that [a] duty of support [exists], whether the amount of support … is calculated by … [the] child support guidelines.”

While the Supreme Court has granted appellate review sparsely, based on the two cases above, it is clear that the court is monitoring requests for appeal in family law cases carefully, and granting them on novel and important issues that have a broad impact on Pennsylvania.

This year, Pennsylvanians are in the process of electing three justices to the Supreme Court, something that has not occurred in recent history. Many legal commentators will be interested to see if having new members on the court will change the amount of family law cases that are heard, especially considering that several of the candidates for the court have significant family law experience.

Justice Correale F. Stevens, former president judge of the Superior Court, is currently serving as an interim justice and is also running for a full term. When asked about family law issues at the Supreme Court level, he said, “As to family law matters, the court grants allowance of appeal based on a case-by-case review. Whether we have five justices, as we do now, or seven justices next year, this will not impact whether or not we take a particular case. The process of case selection focuses on what impacts Pennsylvanians on a statewide level.”

Superior Court Judge Anne E. Lazarus, a former judge of the Orphans’ Division of the Philadelphia Court of Common Pleas and a Supreme Court candidate, said, “With three new justices on the court, it is likely that there may be a fresh look about which cases are granted allocatur and under what circumstances allocatur is granted.”

Another candidate, Superior Court Judge David N. Wecht, a former administrative judge of the Family Division of the Allegheny County Court of Common Pleas, said, “This is an important topic. The Supreme Court should be granting allowance of appeal more often, as a general matter. The court should be accepting and deciding more cases, and should be doing so faster. This includes family law issues, which affect litigants so directly, intimately and emotionally.”

It will be interesting to see if and how the Supreme Court changes its stance on hearing family law cases, if it does so at all, once the new justices are installed in January 2016. Until then, Pennsylvania can still count on its highest court to handle family law cases of high import.

James R. Nixon Jr. is an associate in Weber Gallagher Simpson Stapleton Fires & Newby’s family law group and concentrates his practice on family law matters, including divorce, custody and adoption.

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