To say there are many issues to be addressed in a divorce action is an understatement. The issues are not simple statements of fact. They are personal, emotional, psychological and financial. However, to simplify the broad spectrum, domestic law practitioners generally deal with support (of a spouse and/or children), custody of children, and the division of assets and liabilities.

Through the years, the commonwealth and local rules guiding and dictating rulings, decisions and resolutions in these areas have been somewhat stable. Of course, there is a continuous flow of case law to be considered, but there were standards within each area to be followed.

However, just over a year ago, new support rules came into effect, and, within the past six months, new custody rules came into effect. Life as we knew it in those areas has suddenly changed.

Support

On Jan. 12, 2010, the state Supreme Court adopted amendments to the Pennsylvania Support Guidelines that became effective on May 12, 2010. Pennsylvania, for support purposes, is “a guideline state.” This means that in most cases, the commonwealth has predetermined the amount of money required to pay for food, clothing and shelter of children and dependant spouses depending on the combined net income of both parties. The amount of child support varied depending on the number of children. However, the needs of the family at issue were not specifically addressed.

In high-income cases, which were defined as both parents having a combined monthly net income of $20,000 or more, a battle was sure to ensue. This is because the case would be determined via a needs-based analysis. “Needs-based” translated into lifestyle, and the consideration of every “reasonable” expense of the parties, when the children were in a party’s custody. When these matched with each party’s “income available for support,” the support amount would be determined.

This method of determining support was ruled by case law under 1984′s Melzer v. Witsberger. Under Melzer, the high-income cases often went to trial, became ugly, time-consuming, costly and emotionally draining on all of the parties, as each attacked the truth of the stated expenses and their “reasonableness.” Results varied widely and without consistency because of the needs-based analysis.

With the amendments now in place, Melzer is said to have been abandoned, but in truth, it has been codified. Additionally, high-income cases are now defined as the combined net income of both parties exceeding $30,000 per month. If the combined net income does not exceed $30,000, support is decided based on the guideline amounts, which have been adjusted with new support amounts. Cases exceeding the $30,000 combined net income per month are subject to a three-step process.

The first step applies a formula setting forth the presumptive minimum support obligation based on the number of children at issue (providing for one to six children), and a percentage of the combined net income over $30,000 per month. For example, if the support of two children is at issue, the monthly support obligation is $3,777 plus 8 percent of the combined net income above $30,000 per month.

The second step requires the trier of fact to make any applicable allocations of additional expenses (set forth in Rule 1910.16-6) such as out-of-pocket medical expenses/premiums, child care, camps and private school tuition. While the new guidelines continue to offer a possible adjustment for the mortgage for the party living in the marital residence, more importantly, they clarify that the mortgage adjustment shall not be applied after a final resolution of all outstanding economic claims.

The third step requires the trier of fact to consider the factors set forth in Rule 1910.16-5, for a deviation of the support amount such as: unusual needs/unusual fixed obligations; other support obligations of the parties; other income in the household; the ages of the children; the relative assets and liabilities of the parties; medical expenses not covered by insurance; the standard of living of the parties and their children; in spousal support or alimony pendent lite cases, the duration of the marriage from the date of marriage to the date of final separation; and other relevant and appropriate factors, including the best interests of the child/children.

Additionally, the triers of fact are now required to make their findings of fact on the record or in writing. Bear in mind that in the past, and from what we can see thus far, deviations are difficult to secure in the court system.

Pursuant to the new support guidelines, cases that once were nearly guaranteed to go to litigation because they were “high-income” cases now fall under the basic support guidelines and have a better chance of resolution without litigation. For high-income cases, the three-step method of determining support provides the courts with the flexibility to look at the many factors affecting support, while resulting in more consistent support orders. Perhaps the new support guidelines will lessen the need of parties to litigate, and will emphasize the benefit of reaching a resolution enabling the family to move forward in a manner that is less costly in fees and emotions.

Custody

On Jan. 24, 2011, the new Pennsylvania custody rules became effective. Pennsylvania continues to embrace the belief that in most circumstances, both parents should be involved in their child’s life on a regular and consistent basis. There are many changes to the custody rules ranging from definitions to procedures. However, the most notable changes deal with definitions, standing, the standard for deciding custody cases, relocation, and the overriding goal of protecting the children.

Significant changes in the definitional section are: the seven definitions of physical and legal custody, the removal of the term “visitation” and the addition of the term “relocation.”

The new guidelines set forth three types of persons who may file an action in custody: parents, a person standing in loco parentis to the child, and grandparents. While the previous custody rules were ambiguous regarding the standing of grandparents, the new rules are clear. They state that a grandparent who meets other requirements set forth in the rules will have standing, but their action must be filed within six months of the removal of the child from the home.

Under the old and the new guidelines, the standard for determining custody cases remains the “best interests of the child” with the codification of the case law. Specifically, the new rules set forth 16 factors that center on the safety of the children by looking at past and present abuse committed by a party or member of the party’s household, the level of conflict of the parties, the history of drug or alcohol abuse of a party or member of a party’s household, and the mental and physical condition of a party or member of a party’s household.

Another important addition, especially for the working parent, is the consideration of the party’s availability to care for the child or to “make appropriate child-care arrangements.” Prior to these changes, the working parent had a more difficult time arguing for physical custody when they had to be away at work, while the other parent had the ability to be home and present for the child during working hours.

As stated earlier, the changes related to relocation are causing a stir in new cases. Prior to January, relocations were dictated by case law, 1990′s Gruber v. Gruber. This case law is now codified. The definition requires you to determine whether the move significantly impairs the ability of a non-relocating party to exercise custodial rights. When you consider the definition, perhaps a change in location does not affect the physical custody of the other parent. However, it could mean a change in many other aspects, perhaps all aspects of custody. It remains to be seen whether the definition for relocation is helpful when determining whether the move is a relocation, or whether the definition provides more parents with the ability to move, claiming the move is not a relocation based on the strict language of the definition.

The new guidelines impose more requirements on the relocating parent when considering a move. There are now notice requirements and forms to be sent to the non-relocating parent. Once proper notice has occurred and the forms have been sent, the non-relocating party has only 30 days after receipt to file their objection, or they are foreclosed from objecting.

However, if we consider this procedure but take it to the next level, when a party objects after the 30 days have passed, will the court still hear the objection based on the “best interest of the child” standard? That question has yet to be answered. As we saw in the theme of the 16 factors to be considered when dealing with custody, the safety of the children is a priority. Under the new guidelines, not only are criminal convictions to be considered, but criminal charges (16 enumerated offenses were added) will also be considered. This rule applies not only to the parties but to any member of that party’s household. Additionally, with the safety of the children at the forefront of custody matters, prior to the entry of a custody order, the court may order an evaluation or counseling to determine whether there is a safety risk to the children.

Two final major changes deal with parenting plans and situations in which the parties are living in the same residence. The trial court may now require the parties to submit parenting plans covering nearly every issue in custody, such as the standard issues (daily and holiday schedules) and the non-standard issues (diet, religion, discipline). This provides the court with a detailed idea of each party’s goals and may eliminate some issues in custody. Although the plan can be required, it cannot be admitted into evidence.

When parties were living in the same residence, they could not address custody via the courts. However, pursuant to the new guidelines, parties can petition for custody and obtain a custody order while living in the same residence. The order becomes effective once they are living in separate residences. Already this has eased some of the tension in domestic matters in which the parties were reluctant to live in separate residences, fearing they would somehow “lose” custody of their child/children.

Although several of the changes to the custody guidelines have been addressed here, there are many nuances that require a thorough reading of the rules themselves in order to gain a clear understanding of the codification of the existing case law. It is clear that the underlying emphasis of the changes was to ensure the safety of our children.

Conclusion

We are living in a fast-paced world that is showing no signs of slowing down. In domestic matters, the emotion can make the roller coaster speed even faster and get out of control. With the recent changes to support and custody, there is the effort to make the results more consistent and predictable, resulting in less of a need to enter into litigation.

Additionally, with all that our children must now face, the courts want to ensure that home is the safest place for them, with both parents focused on their safety and well-being. Some practitioners may feel that the new rules have left us with new questions, while others feel that there is more clarity for us to provide guidance to our clients. In any event, as we move forward under the new landscape, the goal is to secure fair and reasonable results on issues that are literally so close to home. •

Carla Marino is of counsel with Lamb McErlane in West Chester, Pa., practicing in all areas of domestic law in Chester, Delaware and Montgomery counties. She is a member of the family law sections of the Chester and Montgomery County bar associations. She can be reached at cmarino@lambmecerlane.com or 610-430-8000.