When an inter-spousal deed transfers property into the name of one spouse individually, it may contain language that the property is intended to be the sole and separate property of the recipient spouse. Even in situations where a deed or other evidence exists, there still may be legitimate disputes as to whether the property is the separate property of one spouse, especially if marital funds were used to acquire the property or it was titled in the name of one spouse individually for estate planning or some other purpose.
Equitable distribution matters often can be complex and such matters are best handled by a reputable family law attorney. Regardless of whether you need assistance in tracing a separate asset to its origin, or putting forth the best evidence in support of a claim of separate property, you can count on the family law attorneys at Gum Hillier and McCroskey, P.
The parents' interest in the custody and companionship of the child has already achieved heightened legal significance and has been elevated to a fundamental right.
Family Law: Congress’s Authority to Legislate on Domestic Relations Questions - gacaramowill.ga
The parental interest is a strong factor, but I believe that it still must accommodate the right of the child, as an individual, to have his or her best interests considered. Although third-party interests, the so-called external factors, may then be considered by the court only after resolving those interests that are fundamental.
Often, non-parents, especially grandparents, form an emotional bond with the child. They may seek to perpetuate a continuing relationship with that child through visitation. Although they may sometimes enjoy a protected interest in the companionship of the child when standing in loco parentis, I agree that, within the legal landscape, the interests of the grandparents are entitled to little weight in comparison to the stronger interests of the parents and the children. Their greatest consideration only enters into a determination of the child's best interests.
Finally, the court must weigh the interest of the state in protecting the emotional and physical health of its minor citizens and ensuring their proper development. The broader form of the state, that is society, has concern relative to the form and function of the family unit. Society's interest in the family stems from the family's unique ability to teach children to care for one another, to develop a sense of community, and to gain the knowledge that is essential for productive citizenship. Each of these interests promotes a particular result.
When considered together, I believe that the result of a contest between competing interests should be clear. Furthermore, I conclude that the interests, themselves, will determine the appropriate balance to strike. In the context of grandparent visitation, the parental interest predominates over the interest of the grandparents, and the consideration of the child's best interest is entitled to fundamental weight.
The Pennsylvania statute is of neutral application.
There is no presumption contained within the statutory text that the best interest of the child will be promoted by any particular custodial disposition. The statute confers standing and sets the standard, and then the court balances the relative rights of the parties. Our grandparent visitation statute is meant to protect children's well-being by providing for visitation when it is in their best interests. It also seeks to preserve the right of access of grandparents to their grandchildren under certain specific circumstances. In the declaration of policy preliminary to the grandparent custody and visitation statute, the:.
General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated.
If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship.
The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. The competing constitutional rights of parent and child must be evaluated in light of the government's position within these areas of conflicting interests. Further, the Commonwealth has a legitimate concern in aiding in the parental discharge of the primary and fundamental duties and responsibilities of the family with regard to child welfare and safety.
The state has a definite and discrete interest in the safety and welfare of children and exercises this responsibility in a number of different ways. Also, this Court requires that, when competing fundamental constitutional interests are presented, or multiple constitutional concepts face conflict, we must search for harmony to provide each a field of operation. We have previously given voice to the benefits of the intergenerational relationship between grandparents and grandchildren.
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Grandparents give love unconditionally-without entanglement with authority or discipline, and often without pressures of other burdensome responsibilities. Children derive a greater sense of [worth] from grandparental attention and better see their place in the continuum of family history. Wisdom is imparted that can be attained nowhere else.
Bishop v. Piller, Pa. As ably recognized by one of our sister states:.
Moreover, the importance of the grandparent-grandchild relationship in the lives of children has been confirmed. Indeed, Kornhaber and Woodward posited that the complete emotional well-being of children requires that they have a direct, and not merely derived, link with their grandparents. Mead advanced the notion that when an individual does not have intergenerational family relationships there is a resulting lack of cultural and historical sense of self.
History of Massachusetts
Bradt, N. Indeed, the decisional law makes it clear that such a benefit is not limited to the parent-child nuclear family. For example, in Moore v.
City of East Cleveland, U. In his plurality opinion, Justice Powell argued that the Yoder, Meyer, and Pierce line of cases applied to extended family relationships, even though those decisions had not involved such associations. Extolling the virtues of the extended family, Justice Powell stated:.
In Commonwealth ex rel. Spriggs v. Carson, Pa. Instead, we believe that [our] courts should inquire into the circumstances and relationships of all the parties involved and reach a determination based solely upon the facts of the case then before the Court.
Appeals Court of Massachusetts,Middlesex.
The General Assembly has directed the focus of the grandparent custody and visitation statute to the fundamental right of the best interests of the child. The courts of the Commonwealth have routinely focused on the best interests of the child in custody and visitation cases, while still recognizing the fundamental right of parents to raise the child. Hooks, Pa. Miller, Pa. Pursuant to the Pennsylvania Constitution, the child has a fundamental right to have his or her best interests considered.
Parenthood, though not paramount, will always be a factor of significant weight. Courts should consider all relevant factors and specific circumstances of the actual parties involved. In addition, the trial court should determine whether the child's emotional health will benefit from re-establishment of the grandparent-child relationship. Was the grandparent, as in this case, an important resource for the child in coping with the death of the parent?
Experience has taught us the lesson that the parental relationship is not an infallible guarantee that a parent will provide the care and concern essential to a child's proper development. In such cases, the General Assembly has established guidelines and procedures that permit state-enforced custody only when a child is found delinquent or dependent as defined by law, or in cases of abuse, deprivation, or neglect.
Thus, the extreme solution of termination of parental rights rests on a demonstration of unfitness of a parent or upon harm to the child. At the other end of the custody spectrum is the clash between the child's parents and the inevitable dissolution of the family that attends a custody dispute between husband and wife.
These disputes have long been guided by the controlling direction to award custody consistent with the best interests of the child. The middle ground, where a third party seeks partial custody and where there is no state-enforced custody, does not demand the stringent harm-to-the-child standard for resolution. I believe that it requires the delicate balancing of fundamental rights. Instead, the court must presume that a fit parent's decision is in the best interest of the child, and the court may reach a decision contrary to the wishes of the parent only if there is evidence sufficient to overcome that presumption.
Troxel goes no further. I am inclined to believe that the Troxel plurality would have used stronger language if it thought that parental discretion may only be outweighed upon a showing of harm to the child. However, the Pennsylvania statute as the Majority applies it here, responds to that mandate and appropriately protects the father's due process rights. Father received the deference to his due process rights that Troxel requires.