Articles by Our Attorneys

In today’s world, the traditional family structure continues to change and now takes many different forms.  Unfortunately, many grandparents have been faced with becoming the primary custodian of their grandchildren when parents become unavailable to raise their children due to mental health, addiction, abuse, incarceration or other issues. Grandparents are bearing the financial burden of raising their grandchildren in their golden years and while on a fixed income.  However, when a grandparent is caring for or has been awarded custody of their grandchild, they have the right to seek child support from the parents.

Under the Pennsylvania Code, parents have a statutory duty to financially support their children.  Parents are liable for the support of their children who are unemancipated and 18 years of age or younger, and in certain circumstances, may even be liable for the support of their children who are more than 18 years of age.  A grandparent that has custody of a grandchild or is caring for the child, regardless of whether a court order has been issued granting custody, may commence a support action on behalf of the grandchild seeking child support from the parents.

The Pennsylvania Code does not impose a statutory duty on grandparents, as non-parents, to financially support their grandchildren.  However, as the traditional family structure continues to evolve, the Court has been faced with support claims asserted against grandparents having custody.

In 2015, the Pennsylvania Supreme Court determined that a stepparent who aggressively litigated for custody of the biological children of his former spouse, who was a fit mother, and who took affirmative legal steps to assume the same parental rights as a biological parent, would likewise assume parental obligations including the payment of child support.  This Supreme Court decision finding a non-parent’s obligation to pay child support has been relied on to argue a support obligation of a grandparent in cases involving support claims asserted between two grandparents having custody but living in separate households and in cases where the grandparents have actively litigated for custody.

While the Court has struggled with addressing the various fact scenarios presented, the Court has continued to determine that the grandparents in these cases did not to have a duty to financially support the grandchild.  The Court relied primarily on the lack of statutory duty.  The Court also recognized the potential impact of requiring a grandparent who steps in to act as custodian of a grandchild when their parents are unable to properly care for them, and the possible reluctance to take on that role when also required to assume the financial responsibility of child support.  Even in a recent case involving custody litigation between divorcing grandparents, the Court found no duty to support by the grandparent existed because the grandparents had assumed custody from the parents due to their unavailability and no action was taken to terminate the rights of the parents.

If you are involved in a custody or support action, it is important to consult with a family law attorney knowledgeable with the Pennsylvania Code to ensure that you fully understand your rights.

The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations.  Ashley B. Stitzer handles a variety of divorce, custody, alimony/support, marital agreements and other family law matters ranging from mediating small disputes to complex litigation.  To schedule a consultation, contact Ashley B. Stitzer at (610) 840-0243 or [email protected].

Private school tuition can be allocated in child support cases if certain criteria are met. First, the Court will determine whether the parents have adequate financial resources. As a general matter, parents have less disposable income after divorce. This is because many costs, such as housing, utilities, and groceries now must be duplicated. Just because an intact family could afford private school tuition does not necessarily mean the parents will be able to afford it post-divorce.

Assuming the parents have adequate financial resources, the Court will consider whether there was a prior agreement to send the child to private school, whether the child has special needs that cannot be accommodated in a public school setting, and whether family history suggests continued attendance in private school but for the parents’ separation. No one factor is dispositive, but as a general matter, it is difficult to compel a parent to contribute to private school tuition when they have joint legal custody and did not agree to send the child to private school. Whether private school tuition is included in the child support calculation is determined on a case by case basis.

Private school is also something that is negotiated over in the broader context of property division, alimony, custody, and child support. Our family law attorneys can assist you in arriving at a resolution that is holistically best for you and your children, including where your children attend school and how tuition, if any, is paid. If you are facing a challenge involving the attendance and payment of private school for your child, you should contact one of our Family Law attorneys.

Yes. Divorce can be granted on fault and no fault grounds, and property division and alimony are determined without regard to marital misconduct. While divorce can be granted on fault grounds, such as adultery, most divorces are granted on no fault grounds, such as the marriage being irretrievably broken and 6 months of separation.
Delaware’s property division and alimony statutes expressly exclude consideration of fault in the division of marital property and the determination of alimony. Rather, property division and alimony are based upon enumerated statutory considerations. There is however, an important caveat to the general rule that fault is not considered in property division. The Family Court will consider whether and to what extent a spouse dissipated assets, or put differently, engaged in financial waste that did not benefit the marriage. Examples can include, but are not necessarily limited to, hotel bills pursuing affairs, excessive gambling, or drug abuse.

If you have a question about divorce, including whether conduct qualifies as dissipation, you should contact one of our Family Law attorneys.

Your engineer calls you as you’re standing over two alternative site plans one afternoon, deciding which you want to submit to the municipality for your project. Your engineer tells you that the municipality is planning to change its zoning ordinance and map in a way that will not permit your project. However, your project is permitted under the current zoning ordinance and map. Will you be able to develop your property as you planned? Because of the “Pending Ordinance Doctrine”, the answer depends on the type of approval you are seeking.

So, what is the “Pending Ordinance Doctrine”? In brief, it is a rule that allows a municipality to deny a building permit for a use (and, by extension, applications for zoning relief required for issuance of a building permit) if that use will be prohibited under an ordinance change that is “pending.” An ordinance change is “pending” once the municipality’s governing body: (1) proposes a new zoning ordinance; (2) makes the proposed change available for the public to inspect; and (3), advertises in an area newspaper of general circulation that the proposed change will be discussed at a future public meeting. If all three of those things have occurred, the municipality may deny an application for a use that will be prohibited by the ordinance change, even if the change has not yet been formally enacted into law.

However, there are important statutory exceptions to this general rule. First, the doctrine does not apply to subdivision and land development applications if the preliminary plan is submitted before the formal enactment of the ordinance change. If the preliminary plan is submitted before the formal enactment of an ordinance change, the entire subdivision or land development application will be shielded from the ordinance change, even if the final plan is submitted after the change is enacted. However, all aspects of the application and plan must conform to the municipality’s technical and design requirements in order for this protection to apply. In municipalities which require the submission of a sketch plan prior to a preliminary plan, the submission of the sketch plan is sufficient to protect the entire application from the ordinance change. Submitting a sketch plan will not shield you from a pending ordinance change if the municipality merely recommends a sketch plan rather than requiring it, so your attorney should take care to confirm the local plan requirements.

Another exception to the Pending Ordinance Doctrine is if an applicant applies for certain types of zoning relief for a project that would ultimately qualify as either “subdivision” or “land development.” For example, if an applicant files an application for a “special exception” to build multi-family homes before an ordinance change is enacted, then both the special exception application and the future land development application and plan will be shielded from the ordinance change if the land development application is submitted within six months of the special exception’s approval.

Unfortunately for property owners and developers, not all types of zoning relief applications submitted before the start of the land development or subdivision process are exempted from the Pending Ordinance Doctrine. Similarly, applications for special exceptions and conditional uses are not exempted where the project would not eventually require land development or subdivision approval. In both these situations, the new “pending” ordinance or zoning map would apply.

If you plan on submitting an application for zoning relief or subdivision/land development, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Developments in the employment world happened in April that could impact everything from mandatory employee onboarding documents to the price of your favorite cup of coffee.  Read about a few of them below.

Employers should be Aware of Significant Changes are Coming for the Form I-9

The Form I-9, an HR onboarding document used to record employment eligibility verification as required by the federal government, is slated to undergo a significant overhaul when the current form expires on Oct. 31.  The Department of Homeland Security is reportedly attempting to simplify the form, with proposed changes including:

• Compressing Sections 1 and 2 from two pages to one page to reduce paper use.
• Moving Section 3 to a separate Reverification and Rehire Supplement, making it a stand-alone section.
• Updating the List of Acceptable Documents to include a link to List C documents (on the U.S. Citizenship and Immigration Services website) issued by DHS. Some List C documents were unlisted.
• Reducing and simplifying the form’s instructions from 15 pages to 7 pages.

Employers can take advantage of the opportunity to submit public comment by May 31. In the past, DHS has implemented suggestions based on public comments, and therefore interested employers should take advantage.

Pittsburgh Starbucks the First Pa. Cafe to Vote for Union

Starbucks employees in a Pittsburgh café unanimously voted to unionize on Wednesday, becoming the first of the coffee chain’s shops in Pennsylvania to organize.  Five additional Starbucks stores in Pittsburgh are in the middle of unionization efforts, and cafes in Massachusetts, New York, Washington state, Arizona and Tennessee have also recently voted to unionize.  The unionization process has reportedly been tense at times, with employees accusing Starbucks of trying to stifle their efforts.

However, in response to the unionization efforts, Starbucks CEO Howard Schultz issued a seemingly positive statement: “We will become the best version of Starbucks by co-creating our future directly as partners, and we will strengthen the Starbucks community by upholding each other’s dreams, upholding the standards and rituals of the company, celebrating partner individuality and voice, and upholding behaviors of mutual respect and dignity.”

Time will tell whether the unionization will impact Starbucks’ already-premium prices.

Pittsburgh Commission, Post-Gazette Drop Racial Bias Dispute over Black Lives Matters Coverage

The Pittsburgh Commission on Human Relations announced will drop its investigation into allegations of racial bias over the Pittsburgh Post-Gazette’s reassignment of reporters covering Black Lives Matter protests, and the newspaper will drop a lawsuit claiming the First Amendment bars such an investigation, the parties told a Pennsylvania federal court.

The Post-Gazette employee, who is African-American, had claimed in June 2020 that she was barred from covering the nationwide Black Lives Matter protests after she posted a message on Twitter sarcastically comparing property damage from the protests to the trash left behind by a country music concert in Pittsburgh.  The Pittsburgh Commission on Human Relations had launched an investigation into the Post-Gazette’s actions after the employee complained that she and other reporters who shared her tweet in solidarity had been barred from further protest coverage, which the Post-Gazette justified under the rationale that coverage she could not provide unbiased coverage.  The Post-Gazette and its parent company, Block Communications Inc., then filed a lawsuit against the commission, claiming its reassignment of reporters was an editorial decision protected by the First Amendment and not subject to second-guessing by the commission or courts.

The case is PG Publishing Co. et al. v. Pittsburgh Commission on Human Relations, case number 2:20-cv-01222, in the U.S. District Court for the Western District of Pennsylvania.  The case presented interesting issues in the overlap of First Amendment law and personnel decisions.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

The Standard Contact Guidelines are guidelines that suggest provisions for contact, holidays, extracurricular activities, and incidental issues related to custody.  The guidelines are just that—guidelines—based upon assumptions that both parents are able and fit to care for the child.  Second, the guidelines are not legally binding, nor do they create a presumption of shared custody.  If your custody case goes to a hearing before a Judge, the Court will apply the best interest of the child standard, without any presumption on what custody should be.

The Guidelines are useful in that they form a backdrop of what the Court may do if the parents cannot agree on certain issues, like how to share holidays.  If the Guidelines are applied, holidays will be shared on an alternating year on, year off basis.  The Guidelines also create expectations for what should happen in particular situations, such as a medical emergency, or ensuring that children complete homework.

Finally, even when the application of the Guidelines is deemed to be generally appropriate, they can and are adjusted to meet the needs of the particular family.  Holidays can be adjusted, added, and/or dropped.  As guidelines, any provision can be amended or discarded as deemed appropriate by the Court or agreed upon by the parents.

A parent engaged in custody litigation should review the Guidelines and speak to a knowledgeable family law attorney to determine whether and to what extent the Guidelines are appropriate for the case.  Assuming the case is appropriate for the Guidelines, a parent should determine which if any provisions should be changed, and if so, how.

At MacElree Harvey, we have a family law team with several attorneys experienced and knowledgeable in family law.  If you are wondering how the Guidelines could affect your case, you should contact our Delaware office at 302-654-4454.

The link to the standard contact guidelines can be found here: https://courts.delaware.gov/family/visitation/visitation.aspx