Articles by Our Attorneys

Whether it be the price of avocados, gasoline, or housing prices and inflation are going up and causing many Americans to buckle down and create savings wherever they can. Then, as many custodial parents have also encountered, the curve ball comes: another Petition to Modify Custody. So much for saving money, right?

When we hear and read headlines of celebrities getting attorney fees awards in their highly publicized cases, surely a parent, who is only doing what’s right and best for Little Johnny or Janey should have their fees paid by the other side too, right? Wrong.

A discussion I have with many clients, and not just those involved in custody disputes, flows from the question: Will they have to pay my legal fees?

Fortunately, or unfortunately (depending on your perspective) there are limited instances where a party is able to recover legal fees. In the context of Child Custody Litigation, the wise and noble Pennsylvania Legislature saw fit to provide us with statutory authorization to seek fees in child custody actions.

Pursuant to Section 5339 of the Child Custody Act, “a court may award reasonable interim or final counsel fees, costs, and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive, or in bad faith.”

23 Pa.C.S.A. § 5339

So how often does this actually happen? When can a client expect to get counsel fees? It depends on the facts and circumstances of the case. Some matters are clear cut, others are anything but; however, I’ve seen awards in instances of both.

To find out if you would be eligible for counsel fees in your child custody, divorce, or other domestic relations related matter, contact Attorney Michael Rovito today to schedule a consultation.

Decisions from across the country in May 2022 contained some interesting, employer-friendly rulings in developing areas of law, including labor relations via Twitter, COVID-19 ‘disability’, and trans-gender benefits issues.  Check out the details below.

3rd Cir. Reverses National Labor Relations Board, Finds Federalist Boss’ Tweet Was Joke

The U.S. Court of Appeals for the Third Circuit reversed a National Labor Relations Board (“NLRB”) decision finding the publisher of online news magazine The Federalist, Ben Domenech, violated labor law by tweeting that he would send workers “to the salt mine” if they sought to unionize, finding the tweet was a joke, not a threat.  The ruling resolves FDRLST Media’s challenge to the NLRB’s 2020 ruling that the tweet was an “obvious threat” barred by the National Labor Relations Act (the “NLRA”).  Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA, which includes threatening employees with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.

The Third Circuit panel concluded that the NLRB’s threat finding glossed over the context of the tweet, observing it evoked the farcical image of a “tiny media company” of 6 employees toiling “in dimly-lit mineshafts alongside salt deposits.”  Domenech touted the win, writing that he’s “pleased with the outcome, and happy that the humorless trolls and their army of bureaucrats lost.”

California Federal Court rejects Claim by Hertz Employee that Mild COVID Was Disability

Hertz defeated an employment discrimination lawsuit by a former employee who was fired after she came to work feeling sick while waiting for COVID-19 test results, after a California federal judge Monday found that the employee – who contracted a mild case of the virus – can’t be considered disabled under California’s Fair Employment and Housing Act (“FEHA”).

Addressing a question of first impression, the District Court in a 19-page order granted Hertz’s motion for summary judgment, finding that mild COVID-19 symptoms don’t qualify as a disability under the FEHA.  The FEHA defines a ‘disability’ as a condition that affects one or more body systems and limits a major life activity, but does not include a condition that is mild or doesn’t make major life activities more difficult.  In that respect, it contains a similar definition of disability as the Americans with Disabilities Act (“ADA”).  In the Order, the Court wrote: “When it presents with temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability … Because the symptoms of her infection were mild with little or no residual effects, Roman’s COVID-19 infection is excluded from FEHA’s definition of disability.”

While the case addressed California law, it may provide guidance for similar claims under the ADA and other states’ disability discrimination laws.  The case is Michelle Roman v. Hertz Local Edition Corp. et al., case number 3:20-cv-02462, in the U.S. District Court for the Southern District of California.

Judge Says Christian Cos. Don’t Have To Cover Gender Transition Care

A North Dakota federal judge temporarily barred the U.S. Equal Employment Opportunity Commission and the Department of Health and Human Services from requiring Christian employers and health care providers to cover gender transition surgery.  The court granted the Christian Employers Alliance’s (“CEA”) motion for a preliminary injunction in an order that prevents the EEOC and HHS from requiring the business group’s members to provide health coverage for gender transition services until the court considers the merits of the case.  The CEA sued the government in October, claiming that by requiring trans health coverage, the EEOC and HHS were misinterpreting Title VII and the Affordable Care Act in violation of the Religious Freedom Restoration Act, the First Amendment and the Administrative Procedure Act.

The Court enjoined the EEOC from interpreting or enforcing Title VII of the Civil Rights Act against the CEA in a way that would require the business group’s present or future members to provide insurance coverage for gender transition services. He also enjoined the EEOC from applying or enforcing those regulations against insurers and third-party administrators of CEA members.  The Court also enjoined the HHS from interpreting or enforcing Section 1557 of the ACA and any regulations in a way that would require future or present CEA members to provide, offer, perform, facilitate or refer for gender transition services, and from enforcing any regulations restricting or compelling member speech on gender identity issues.

The CEA joins several other religious groups that have obtained court orders blocking federal agency requirements on trans health care coverage.

The case is Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission et al., case number 1:21-cv-00195, in the U.S. District Court for the District of North Dakota.

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.

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.