Family Law Blog

By Robert L. Sharpe Jr., Esquire PRINCE LAW OFFICES rsharpe@princelaw.com

Do common law marriages exist in Pennsylvania? Are they legal?

Like a lot of questions, the answer is Yes, No, Maybe, and It Depends.

The common law marriage was for many years recognized as legally binding in Pennsylvania. In fact, couples who lived as common law husbands and wives, without the benefit of a marriage license or ceremonial wedding, need to get a court approved divorce to legally end the marriage.

But as of January 1, 2005, no one could any longer enter into a self-solemnized marriage, otherwise known as a common law marriage. That’s because the state Legislature passed a law that banned new common law marriages after January 1, 2005, but let stand those common law marriages entered into prior to that date.

So, are those couples who lived as common law husband and wife before 2005 considered married? Again, it depends.

Let’s start by making it clear who is NOT in a common law marriage. Those who obtained a license at the county courthouse, and who had a ceremony performed by a judge (active or retired), mayor, or a member of the clergy of any organized religion, are legally married without the need to establish a common law marriage.

Also, let’s end a few myths: You are not in a common law marriage if you’ve lived together a minimum number of years (the most common myth is 7 years of cohabitation), or if you’ve held yourselves out to the world as a married couple, or if you’ve filed taxes or bought property as a married couple. Actually, it’s a lot easier.

To establish a common law marriage, you simply must have – prior to 2005 – exchanged a vow of present, not future, intent to “take you for my husband” or “for my wife.” Not in those exact words but something along those lines. Then, you have a common law marriage. Instantly.

Being able to establish a common law marriage prior to 2005 could be crucial to gaining Social Security or survivor benefits, or property distribution in a divorce. If you’re concerned about the 2005 law change, you may wish to have a lawyer draft an affidavit that states how long ago you and your partner entered into a common law marriage. Also, you may hold a reaffirmation ceremony, like a lot of traditionally married folks do, before several witnesses.

By Robert L. Sharpe Jr., Esquire; PRINCE LAW OFFICES, P.C.; rsharpe@princelaw.com

There are no easy child custody cases. But among the toughest for families to handle emotionally are relocation cases. And those are also among the toughest cases when it comes to dealing with the resulting legal issues. A relocation case raises judicial scrutiny and legal challenges far beyond those of a typical custody battle.

A relocation case happens when one parent wants to move to a new town and the move is far enough from the other parent that regular child visitation becomes difficult if not impossible. The move does not have to be out of state … simply a move to another county, or a move that requires the child to enroll in a new school district, is enough of a change to turn a regular custody modification case into a relocation case.

As most custody litigants know, the law applies “the best interest of the child” test to determine what changes in custody may be allowed. The parent who wants the change must prove to the court that the change being sought is one that will most benefit the child. Normally, that is the only test. Normally, a parent’s needs and desires are not considered. A parent who says, “I can’t live without my kids,” will get sympathy from the lawyer but will not win any points with the judge.

But in a relocation case, there are two other main considerations beyond the child’s best interest.

First, is the move going to improve the quality of life for the entire custodial family? Is there a better-paying job waiting for the parent that will make life better not only for the parent, but for the child and the entire family? Then, consider the non-economic factors. Are there family members in the new community, such as grandparents or aunts, who will provide a support system for the child and family? Are there better educational opportunities for both parent and child? A safer, healthier environment?

“Ordinarily, when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside,” said the Pennsylvania Supreme Court in the leading case on relocation, Gruber v. Gruber, 400 Pa. Super. 174 (1990).

On the other hand, the court will listen to arguments that the move is not based on a well-reasoned, thoughtful decision, but instead is a “momentary whim.”

What is a whim? A parent who wants to move away from the non-custodial parent to be closer to a girlfriend or boyfriend, for example, will be challenged to show how the move benefits the child and why the child is better off in a relocation.

In Meyer-Liedtke, the Superior Court refused to allow a mother to relocate to California with a new husband based on the mother’s need for “personal happiness”; in Graham, a mother could not relocate to Florida to be nearer her boyfriend, again for her need for personal happiness [762 A.2d 111 (2000), 1558 WDA 2000 (2002)]. However, it may be permissible when other factors are weighed, such as the relative parenting abilities of the two parents. In a case named Beers v. Beers, a mother was allowed to move from Lehigh County to Chester County, a drive of one hour and 40 minutes, to live with a man she had met on the internet. [710 A.2d 1206 (Pa. Super. 1998)].

Second, the court will question the custodial parent’s motives for wanting to move. That parent’s integrity will be examined.

The law has long considered essential a child’s ability and opportunity for a loving, healthy relationship with both parents. As a result, the courts have consistently leaned toward awarding primary custody to the parent who exhibits the most cooperative spirit in ensuring or promoting such a relationship between the child and the other parent. If it’s shown that one parent designed a move to be vindictive, or frustrate the visitation rights of the other, any attempt to relocate will likely be denied. However, if the parent wanting to move is and has been fully committed to providing the other parent with plenty of visiting time, it will be easier for the court to grant the relocation request.

The same general guidelines and principles of law apply to cases where a grandparent is the custodian who is leaving, or being left behind.

It’s important to recognize if you are heading for a relocation case. That’s because a parent who relocates before addressing the other parent’s opposition will find himself in court to rectify the premature move before the court even considers the merits of the move. A full evidentiary hearing is required before a child may be relocated without the other parent’s implied or explicit permission. Relocation without court permission could expose the relocating parent to sanctions, contempt accusations, or at least a negative impression at the outset of litigation.

With relocation comes a significant change in visitation. Depending on how far the move, the court may order the relocating parent to shoulder the responsibility of driving the child back and forth from visits. In moves of greater distances, the relocating parent may be forced to pay for bus or airline tickets. And the parent left behind may be entitled to summer-long visits of as many as 10 weeks, and week-long visitations over spring break and Christmas holidays. Often, an experienced Family Law attorney can negotiate the terms of a relocation agreement that satisfies both parents, without costly litigation.

By Robert L. Sharpe, Jr. The Supreme Court of the United States recently refused to consider an appeal of a court ruling that rejected a Berks County judge’s challenge to the constitutionality of Pennsylvania’s child custody law. At issue is when grandparents are allowed to ask the court to give them visitation or custody rights with their grandchildren. Pennsylvania law allows a grandparent the legal “standing,” or right, to file custody actions only when the parents of the grandchild are divorced, have filed for divorce, have been separated for six months or longer, or when one parent is deceased. On the other hand, standing to obtain partial custody or visitation is not given to the grandparents of children whose parents are married and living together. The Honorable Scott D. Keller, judge of the Berks County Court of Common Pleas, had ruled that this law was unconstitutional because it unfairly treated grandparents from intact families differently than grandparents of broken families. The case illustrated what happens when courts have to balance the rights of parents to raise their children as they see fit, against the rights of the government to establish, by law, a public policy that assures continuing contact between grandparents and grandchildren. The Equal Protection Clause of the U.S. Constitution demands that the law should be applied similarly to people who are in similar situations. This constitutional right is especially important when the law in question affects a fundamental right, such as a parent’s right to parent. For the government to treat some grandparents differently than other grandparents, or divorced parents from married parents, requires what constitutional law describes as a “compelling government interest” or reason that must stand up to the court’s “strict scrutiny.” In the Berks County case, a child’s mother objected to her ex-husband’s parents seeking visitation time with her two children. Judge Keller agreed with the mother that the Pennsylvania Legislature failed to demonstrate a compelling need for state intervention in the family’s custody dispute. The judge said: “Both parents remain and, during periods of their partial custody with the children, either parent can provide access to their parents. There is no compelling reason that this Court can see for the state to require that Mother give up more of her time with the children, so that Father’s parents can have their own periods of visitation separate from visitations while Father has custody …” Both parents should have the right, free from court interference, “to make decisions about the upbringing of their children, including the decision about with whom the children associate,” Judge Keller ruled. The case was appealed to the Supreme Court of Pennsylvania, which in a narrow 4-3 ruling, overturned Judge Keller’s decision in the summer of 2007. The Pennsylvania Supreme Court majority held that the government does indeed have a compelling interest to protect children of non-intact families by allowing for their continued contact with grandparents when the parents are deceased, divorced or separated. The justices noted that “in the recent past grandparents have assumed increased roles in their grandchildren’s lives and our cumulative experience demonstrates the many potential benefits of strong inter-generational ties.” Grandparents can help protect a child from the trauma of divorce, or the heightened risk of harm arising from the breakdown of a marriage or a disturbed family environment, the court noted. Moreover, said the justices, the law requires that before a grandparent can assert custody or visitation rights, the court must consider the child’s prior relationship with the grandparents, the prior willingness of the parents to allow access to the child without a court order, and whether granting the grandparents’ request would interfere with the parent-child relationship. The U.S. Supreme Court in November 2007 declined to hear the Berks County grandparents’ appeal of the Pennsylvania Supreme Court ruling. The three Pennsylvania justices who agreed with the Berks County court and voted in the minority said the law unfairly discriminates between married parents and divorced parents. They agreed that “healthy relationships with grandparents unquestionably benefits children,’’ but disagreed that a child benefits “in cases where grandparents force their way into grandchildren’s lives through the courts, contrary to the decision of a fit parent.” It was wrong, the minority argued, to assume that divorced or separated parents were less capable of making parental decisions than married parents. Also, they said, safeguards exist to protect children of broken homes other than allowing a grandparent the standing to pursue a custody action in court.