Family law may often be an overlooked area of law, but this year's chair of the Pennsylvania Bar Association's family law section wants to be proactive in seeking to change the legal area.
This year's agenda includes trying to get the Pennsylvania Divorce Code updated for the first time in several years and looking into whether a role for parenting coordinators can be restored in custody cases.
Daniel J. Clifford, a partner with Weber Gallagher Simpson Stapleton Fires & Newby and managing partner of the firm's Norristown, Pa., office, said the section tends to be more reactive rather than proactive. The section often is in a position of responding to legislation that is introduced in Harrisburg because legislators, in turn, are responding to constituents who, "for lack of a better word, badger" their representatives on an issue they feel aggrieved upon, Clifford said.
The family court system is overburdened and understaffed and cases can languish for years, Clifford said. There are "very few proposals to help change that," he said.
The two main issues Clifford hopes the section can be proactive on in his year as section chairman are updating Pennsylvania's divorce laws to allow for cases to proceed more quickly and whether parenting coordinators could be restored under the appropriate parameters.
Under current divorce law, if one spouse does not agree to a no-fault divorce and there are no at-fault grounds that would allow for one spouse to seek a divorce unilaterally, a no-fault divorce cannot be obtained for two years, said Clifford, who practices family law in Southeastern Pennsylvania, including the counties of Berks, Bucks, Chester, Delaware, Lehigh, Montgomery, Northampton and Philadelphia.
Once spouses are separated for two years, a spouse cannot dispute the divorce, Clifford said, but even once a divorce action gets going, it can take another two or three years to get the divorce through.
If the spouses do agree on a no-fault divorce, then the case can get started in 90 days, Clifford said, but it is very unusual that both parties agree.
There's a "very small percentage that right off the bat are in agreement to move their case forward," Clifford said.
Clifford would like to see the law changed so that the time period in which one spouse could object to a no-fault divorce would be reduced from two years to one year.
Under the current two-year system, "if the parties need guidance to resolve their cases, they're not going to see anyone to help them resolve them in the court system for a very, very long time," Clifford said, especially because many cases involve pro se litigants who in a "do-it-yourself society … aren't intimidated to handle their own legal matters."
Further, having long delays in contested no-fault divorces creates a perverse incentive for spouses to seek at-fault divorces instead, Clifford said. At-fault divorces create a more adversarial posture between estranged spouses, he said.
This spring, the Pennsylvania Supreme Court enacted a rule that eliminated the use of parenting coordinators in custody cases.
The perception in the family court bar is that the Supreme Court was concerned about a "slippage of judicial authority to a nonjudge," Clifford said.
But there can be an appropriate role for parenting coordinators to "call the balls and strikes on nonlegal issues" when parents are sharing custody, Clifford said.
Parenting coordinators were working well in many cases in which there were common day-to-day issues on which parents couldn't agree, Clifford said.
"In high-octane cases, you're not going to get agreement on anything," Clifford said.
In the appropriate framework, parenting coordinators would not make any decisions with respect to custody or custodial schedules, Clifford said. Instead, coordinators would sort through nonlegal issues like how time for missed visits will be made up or which parent will get Christmas this year, Clifford said.
Clifford said a statute should set out limited powers for parenting coordinators that would ensure the coordinators would not decide issues that only a judge should decide.
"If you can't get in to see a judge about [nonlegal issues], you sort of have a situation where the party that barks the strongest gets what they want," Clifford said.
Clifford's third initiative for the year is to expand the training of the family-court judiciary on conducting interviews with children in custody cases.
The idea will be to have an instructional video for judges and lawyers on how to interview children in a custody case.
Same-sex marriage and discrimination against LGBT Pennsylvanians, especially in support of bills pending in Harrisburg, will be another issue that the section will be working on this year, Clifford said.
Same-sex couples trying to determine their property rights have to be in civil court, not family court, because of jurisdictional issues, but family court is more friendly to litigating those issues.
"There really is no home for them in the court system," Clifford said.
Clifford also has been making an outreach to law schools in Pennsylvania on creating a division within the section for law students interested in family law.