Benefits Paid to Children

Benefits payable to the children can affect the child support award. Pennsylvania Rule of Civil Procedure 1910.16-2(b) discusses the treatment of public assistance, SSI benefits, certain Social Security payments and foster care payments in regard to calculation of support. Per sub-section (1) public assistance and SSI payments cannot be considered. SSI is a federal means-tested benefit. It operates as more of a welfare benefit similar to public assistance. Examples of public assistance include cash assistance or food stamps. Sub-section (2) addresses social security derivative payments for children. Any social security benefit as a result of a parent’s death, disability or retirement should be addressed in the child support calculation. It should be added to the income of the party receiving the benefit.

Foster care payments are discussed in sub-section (3). Any payments received by the foster parent should not be included as part of their income in any other support matter. The rules for which benefits payable to children should be included in a support award parallel the rules for the parents. For example, Social Security disability (SSD) benefits received by the parents are counted as income for the party receiving it. The disability payments are meant to replace the income the recipient would have received if they had not become disabled. In contrast, Supplemental Security Income (SSI) is not meant to replace lost earnings but instead to provide some income to disabled people who would otherwise be poverty-stricken and accordingly is not classified as income for calculating a support award.

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Breast feeding in Custody Disputes

Breast-feeding alone is not a reason to grant custody to the Mother over the Father in a custody dispute. In J.R.M. v. J.E.A., 33 A.3d 647 (Pa.Super. 2011), the court granted Mother primary physical custody based exclusively on the fact that the parties had poor communication and Mother continued to breast feed the child. Father was subsequently able to successfully appeal the trial court’s order. Father pointed out the court’s failure to consider all the factors as listed under Section 5328 of the custody statutes. Section 5328 mandates that courts consider all of the listed factors relating to the best interests of the child when entering a custody order.

The relevant factors for consideration include the following: (1) which party is more likely to promote a continued relationship with the other parent; (2) any present or past abuse within the respective households; (3) parental duties performed by each parent; (4) need for stability in the child’s education, family life, and community; (5) extended family relationships; (6) sibling relationships; (7) preference of the child if mature enough to offer; (8) attempts to withhold the child or poison relationship with other parent; (9) which party is more likely to foster a loving, consistent, nurturing environment; (10) which party is more likely to attend to the daily and special needs of the child; (11) proximity of residences; (12) actual availability to care for child or ability to make alternate arrangements; (13) level of conflict between parents and/or ability to co-parent; (14) present or past drug or alcohol abuse; (15) present or past mental or physical health concerns; (16) any other relevant factor. Criminal background is also relevant for all adult household members. The procedural requirements now mandate each party to submit a criminal history verification at the onset of a custody matter as well.

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Great-Grandparent Custody

Great-grandparents are able to pursue partial custody just as grandparents are. Section 5325 of the Domestic Relations Statute indicates great-grandparents may petition for partial custody/visitation where one of the following conditions is met: (1) a parent of the child is deceased; (2) the parents of the child have been separated for at least six months; or (3) the child has lived with the great-grandparent(s) for at least 12 consecutive months and a petition is filed within six months after the child is removed from the home.

It is also possible for grandparents to request any form of custody under Section 5324. While great-grandparents are not specifically mentioned in this provision, they can still pursue custody if they stand in loco parentis to the child. In loco parentis status requires more than just a caretaker position. For example, in Argenio v. Felton, 703 A.2d 1042 (Pa. Super. 1997), the Superior Court denied in loco parentis status to a grandparent who daily cared for the child. The court based its conclusion on the fact that the grandmother “proved that she acted as no more than a care-taker, in effect, a baby-sitter for the child, albeit a frequent caretaker.” In loco parentis literally means in the place of the parent. In Peters v. Costello, 891A. 2d 705 (Pa. 2005), the Court explained “in loco parentis status embodies an assumption of parental status as well as an actual discharge of parental duties, and gives rise to a relation which is exactly the same as between parent and child.”

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Post-Divorce Healthcare Options

Once a divorce decree is issued, entitlement to health benefits as a spouse terminates. COBRA was enacted in 1986 and allows temporary healthcare continuation at group rates for ex-spouses. The ex-spouse is responsible for the entire premium. In that regard, it will likely be more expensive than the rate for the employee who is likely receiving an employer contribution toward the premium. Employers with 20 or more employees are required to offer COBRA coverage. The maximum coverage period in the event of divorce or legal separation is 36 months.

A new alternative to COBRA coverage is the healthcare marketplace. Enrollment is generally at the start of the year however, enrollment is possible throughout the year if there is a qualifying event. Losing prior coverage as a result of divorce, having or adopting a baby, and getting married all constitute qualifying events. The marketplace will generate the plans available based on household income, location and tobacco use. There are four plans ranging from bronze plans which cover 60% of expenses to platinum plans which cover 90%. The monthly premium correlates with the percentage of out-of-pocket expenses that will be covered. The lower the monthly payment the higher the out-of-pocket expenses will be. All plans include routine doctors visits and preventative care, prescriptions, hospitalization and maternity care.

Medicaid is also an option. Eligibility for Medicaid coverage is based on adjusted gross income in relation to federal poverty levels.

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