Category Archives: Family Law

If we have children can we be considered common law married in PA?

Q: We own a home together and have been on each other’s health and life insurance policies. His friends and coworkers believe we are married, as I wear a ring and he refers to me in public “as his wife”. We never got married because I was married previously and had to pay my loser ex-husband spousal support, as he made less money than I. I didn’t want to get stuck in the same boat again. (Pittsburgh, PA)

A: Common law marriage was abolished on January 2, 2005 in PA. However, if you were in such a domestic relationship before this date, you can establish a common law marriage in court, depending on the facts. You would have the burden of proof and it is very difficult to do. You may want to propose to him and get it over with.

Can they take child if marijuana in her system?

Q: Since it’s 2018 and marijuana is legalized in most States as recreational and medical, will they still take the child if she is born with marijuana in their system? I am asking for a friend. (Forest Hills, PA)

A: Marijuana is still illegal in PA. CYF can remove a child with drugs in her system at birth, especially where there are other signs of parental abuse or neglect. I think the issue is more complicated and not so black and white if the mother has a medical marijuana card, but CYF can still remove. I would suggest that your friend obtain a parent advocate attorney.

Can an emergency PFA prevent me from seeing my son?

Q: After an argument my boyfriend, he had me arrested and then filed a PFA that included my son. My son was in no way involved in the argument until I was told to leave the house and wanted to take him with me. (Pittsburgh, PA)

A: I am not sure of all the facts here, like is this child both of yours, is the house your boyfriend’s or yours, etc.? Regardless, if the PFA has been filed but no hearing has been held yet, you should defend it at the time of the hearing. There is not much you can do while the Emergency PFA Order is in effect. At the final hearing, a judge can grant the petition, deny the petition or find it does not apply to your son if granted. Additionally, most PFA’s are settled by agreement. Perhaps you can settle it in a way that the PFA does not apply to your son. If you want to see your son pending the emergency PFA order, talk to an attorney about filing an emergency motion for custody pending PFA hearing.

How can I get legal custody of my great niece?

Q: I have been raising my almost 4-year-old great niece for 2 1/2 years now. While her mother (my niece) was in prison for vehicular manslaughter killing her 6-year old son. Her father dropped her off at my house and has only seen her a handful of times in the past 2 1/2 years. He doesn’t help with her at all. Her mother got out of prison about 3 weeks ago and is trying to take her from me. She can’t even get her son back. I have done everything for this little girl. How do I file abandonment charges on them both? (McKeesport, PA)

A: You have an excellent chance of establishing standing to get custody under new amendments to 23 Pa. CSA Section 5324. You can have an attorney file this motion for you to get in front of a judge and have an order granted. If you cannot afford an attorney, you may be able to get help in the Family Division at 440 Ross Street in downtown Pittsburgh. There is a pro se (self-representation) motions program.

Can I divorce my husband who is in prison in PA?

Q: I want to divorce my husband, we got married while he has been incarcerated. We have never lived together and have never consummated the marriage. We both agreed to the divorce. He nor I will contest it. Is there an easy way to do this?

A: A no-fault uncontested divorce is usually easy, as long as he can accept service of documents where he is living and can return mail. If you don’t feel confident in doing it yourself, which most people don’t, shop around for a good price from attorneys. If you are indigent, or under a certain income level, you may seek help from Neighborhood Legal Services or from the Allegheny County Bar Association indigent divorce program.

Can my husband take my vehicle if it’s in his name?

Q: My husband and I haven’t been together in a year. We are not legally separated nor has the divorce started. We have 2 vehicles both purchased since we have been married but both unfortunately in his name. We’re living in 2 different states, myself in PA and him in Ohio. There haven’t been any issues as far as the vehicles go unit now. Last week his transmission went out and now he is demanding my car. If this was “my” car bought while together married both of us paying for the vehicle is he able to take it and or report the vehicle stolen? My car is the only belonging I am left with. Thanks in advance! (Pittsburgh, PA)

A: You will have a good argument when the court divides your property in the divorce action, in that regardless of who is on the title, it is marital property. However, as to here and now, he is on the title and if he wants to, he can try to take it. The police may or may not let him do it. They are not going to involve themselves in a driveway divorce settlement. They may be persuaded that he has the title. Or, knowing that you are married, they may tell him to hit the road and talk to his divorce lawyer. You may want to tell your local police what is going on in just in case. What you can do is keep the car in a garage, hidden or blocked in, if that is possible. The police will not take a stolen vehicle report where the alleged perpetrator is the wife. In the meantime, you may be able to have an attorney file an emergency motion to give you exclusive possession of the car, pending the divorce proceedings. You may also tell him that such a foolish act will hasten your filing of a spousal support complaint. If his behavior turns to harassment, you can file for protection under the Protection from Abuse (PFA) statute.

Can CYF hold a mother responsible for the actions of the father?

Q: My sister in recently had her children taken from her custody and placed with her mother-in-law for a failed drug test and a somewhat recent drug related charge. My sister’s husband is a heavy drug user and hasn’t even contacted the children since they have been placed with his mother. My sister claims that CYF told her that they will be holding her accountable for his actions even though they are separated and not even living together. Is this legal? (West Mifflin, PA)

A: It helps if the heavy drug user father is out of the home. However, if mother has a positive screen and drug related arrest, it can result in children being removed from her home. More facts would need to be known. I suggest the mother speak with a lawyer who handles custody and cases involving CYF. If she cannot afford a lawyer, I suggest she contact the Allegheny County Bar Foundation Juvenile Court Project to see if she qualifies for a free attorney. In situations like this, mother may have a better chance of reunification and getting custody back if she splits from father altogether and enters and completes a serious drug and alcohol program.

Do I have any custody or visitation right as an aunt?

Q: My husband and I have been in his life since birth up to a little over a year ago when his mother took all visitation away. I supported him with diapers and cloths and wipes and we had him all the time. We love him, we taught him to swim gave him lesson we put him in early classes to learn to play with other kids! She got a boyfriend now so there are no visits. (Pittsburgh, PA)

A: Generally, grandparent have not right, or “standing” as they call it, to visitation or custody. However, you may benefit from recent amendments to the custody statute found in 23 PA CS Section 5324 based on your lengthy past relationship with the child. I would consult with a family law attorney to see if it would be worth filing a petition for custody or visitation standing.

Will warrant be issued if parent no shows for child support hearing?

Q: The mother is on government medical/ food stamp assistance. The child support case is in PA. The mother of child did not show up to the first initial hearing. The hearing has been rescheduled. Will a warrant be issued for me if I do not attend the hearing? (Pittsburgh, PA)

A: I do not believe the Family Division issues warrants for parties that do not show for hearings to establish child support. If it was a contempt hearing for failure to pay child support, they could hold a hearing without you, find you in contempt in absentia, then issue a warrant. If you fail to appear at a support establishment hearing, they will conduct a hearing without you and issue an order, which will likely require you to pay support.

How can my wife drop a PFA against me?

Q: I have a 2-year PFA against me from my wife. She just emailed me a pretty sobbing story on how she was wrong. I refuse to reply or contact her by any means except by lawyer. Can it be any lawyer? Or how could I simply ask if she wants to speak. She really wants to drop the PFA. 90% of it was fabricated but I didn’t want any part of her, so I didn’t fight it. (Pittsburgh, PA)

A: Don’t trust her. The last client of mine that fell for this was dragged out his house in handcuff’s during a Penguins playoff game. Have your lawyer, or a lawyer, contact her lawyer or her, to see if she will sign off on a Motion to Vacate PFA.