Is the “Best Interest of the Children” Standard No Standard at All?

In Pennsylvania, as in most states, child custody battles are something of a crapshoot. Theoretically, courts are supposed to enter custody orders that are in “the best interest” of children based on a loose set of factors ranging from parental cooperation to history of abuse to who is adjudged the most emotionally nurturing parent. In practice, however, decisions are mostly entered based on the personal opinion and biases of the judge overseeing the case, which can be based on anything or nothing at all. As a result, decisions can vary widely, even in similar cases. Decisions are certainly not based on any empirical research into what sorts of arrangement are actually in the best interests of children.

Encouraged by parental advocacy groups, several states are trying to make custody battles less arbitrary.

They want to see “presumptions” of child sharing time and duties established nationwide. In other words, parents should enjoy equal time with and responsibility for their children. The International Council on Shared Parenting, which held its first conference in Germany last spring, is the latest to join the field of time-sharing boosters.

The Council’s consensus held that shared parenting “is optimal to child development and well-being, including for children of high conflict parents.” The group also set a minimum of one-third time as the lowest threshold to maintain a positive parental relationship.

In the past, custody decisions favored mom and the idea that very young children need a primary attachment with her.

But through the strength of groups like the National Parents Organization (formerly Fathers and Families) and the International Council, the shared parenting movement has gained traction. Arkansas last year passed a law calling for “approximate and reasonable equal division of time” in child custody cases. A similar bill passed in Florida, but was vetoed by the governor. Massachusetts, Maryland, and Connecticut have all formed commissions to look into the matter.

It is difficult to find impartial and disinterested evidenced-based research. Many “studies” turn out to be funded by the very groups promoting their research. There is, according to Psychology Today columnist and Psychology Professor Robert Emery, a general, even-handed agreement that very young children of divorce thrive when they have one primary parental relationship, bolstered by a strong secondary relationship (one that is, however, secondary); and that older children do well when their time is shared out more evenly.

That is unlikely to settle the ball on the contentious issue of the “best interests” of the children standard. In Pennsylvania, custody is still a roll of the dice, and the odds probably remain in your favor if you are a mother. But the issue is still swamped by debate. Shared parenting is an idea whose time has not quite arrived.


Can You Ever Leave A Child Alone In The Car?

If you are a parent with young children, I’m sure you have thought at least once about leaving your children alone in the car while you ran a quick errand.  Let’s face it, getting young kids in and out of the car can turn a 3 minute stop into a 30 minute ordeal.  On the other hand, you probably haven’t considered locking your kids in the car for an hour while you dropped in Parx Casino to play a few hands of blackjack. However, at least twelve such incidents have occurred in the past few years rightfully resulting in criminal charges against parents or caregivers.

A recent story on about criminal charges filed against a mother for leaving her four year-old son in the car for five minutes (on an overcast 50 degree day) while she went into a store to purchase headphones peaked my curiosity in the question, “can you ever leave children alone in a car?”

I think it is a legitimate question, and that the answer should not simply be “no.” There are obviously many situations where leaving a child in a car could pose grave danger to the child. One should always be cognizant of those very real dangers. However, clearly there are some situations where leaving a child in a car poses no substantial threat to the child.

Indeed, I can think of many other situations that can place children in much greater danger, such as walking in a busy parking lot or playing near a busy road, which are not illegal.  Indeed, some the top causes of child injury and death are auto accidents and swimming pools, but no serious person is proposing banning kids from riding in cars or backyard pools.  So what does the law say about kids and parked cars?

In Pennsylvania, there are two laws under which parents or caregivers can be charged for leaving a child alone in a car.

The first law is found under the Motor Vehicle Code at 75 Pa. C.S. § 3701.1, entitled “Leaving an unattended child in a motor vehicle.” That law states that “a person driving or in charge of a motor vehicle may not permit a child under six years of age to remain unattended in the vehicle when the motor vehicle is out of the person’s sight and under circumstances which endanger the health, safety or welfare of the child.”  That law applies to “highways and traffic-ways” of Pennsylvania as well as parking lots.  It does not apply to private driveways.  The penalty for violating that law is . . . wait . . . a whole $25.00.

The second law that is used to prosecute parents or caregivers who leave children in cars is found under the Criminal Laws at 18 Pa. C.S. § 4304, entitled “Endangering the welfare of children.”  That law states that “a parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.”  Unfortunately the law is vaguely written and subject to interpretation.  Therefore, it is far from clear what circumstances of leaving a child in a car might qualify as “endangering the welfare of a child.”

However, common sense should prevail. 

If a reasonable person might think that a child might be in danger, then that would probably violate the law.  A violation of the law is a misdemeanor of the first degree, which carries a fine of between $1,500.00 and $10,000.00 and imprisonment of up to 5 years (although probation is the most likely punishment if the child is uninjured and it is a first-time offense).

So what does all this mean?  I think that parents are well within their legal rights to leave their children alone in the car if (1) they can see the car at all times and (2) leaving the children in the car does not pose a significant danger to them (e.g. no closed windows on warm sunny days.  In comparison, leaving a young child in the car to go into a store or other building where the car is out of sight, even if there is no significant threat of danger to the child, is probably not a good idea and borders on illegal.

In any event, you should never leave children alone in a car on warm or hot days with the windows closed.

According to the National Highway Traffic Safety Administration, “a locked car sitting in the summer sun quickly turns into an oven,” and “temperatures can climb from 78 degrees to 100 degrees in just three minutes, to 125 degrees in 6-8 minutes.”  I would note that most of the incidents involving child death in cars were the result of mistakes and not intentional conduct.

So parents, yes you can legally leave your kids in the car to pick up your dry cleaning or something at Wawa or 7-11 so long as you can see your car while doing so and there is no other threat to the child.  However, the laws on child endangerment are one more reasons to skip that trip to Parx.


Cooley & Handy Sponsors TALK’s 5K Trail Run and 1 Mile Family Walk

Cooley & Handy is proud to sponsor TALK Institute and School’s 5K Trail Run and 1 Mile Family Walk. The event is scheduled to take place on Saturday, September 21, 2013, at 10:00 A.M. at the Garrett Williamson Foundation in Newtown Square, PA. The benefits will go towards increasing scholarship resources and its intensive programming. TALK’s mission is to seek out and create innovative treatment strategies and conduct research to establish new standards in treating students with severe speech and language disorders, including apraxia, and to provide the intensive, integrated academic instruction and therapeutic interventions essential to children coping with these disabling disorders. If you are interested in coming out and supporting the cause you can register for the run here.


How To Keep The Peace During The Holidays If You’re Divorced

For adults, the holidays are an opportunity to try to recapture some of the magic and wonder of their childhoods. Children, however, are just forming their memories and feelings about the holidays. Imagine that if, instead of associating the holidays with joy, you associated them with stress and fights. That is the reality of the holidays for many children of divorced or separated parents, although it doesn’t have to be that way.

There are a number of simple steps that divorced or separated parents can take to minimize conflict during the holidays.

1. Have a clear written holiday custody schedule in place.

The most important step that divorced or separated parents can take to minimize conflict during the holidays is to have a clear written holiday custody schedule in place. A written schedule is important so there are no misunderstandings and each parent can plan his or her holiday activities accordingly. The children should be told the schedule in advance so they also know what to expect.

2. Respect the schedule.

Once a written holiday custody schedule is in place, parents should make every effort to follow that schedule. Be on time or early for all custody exchanges. Being late for a custody exchange is probably the number one source of conflict between separated parents. The potential for conflict is higher during the holidays, when time with children is coveted and events are planned.

3. Stay in touch.

Even the best-laid plans can go awry due to unexpected traffic, illness, or other unforeseen events. Make sure you have your cell phone charged and with you at all times during the holidays and a number where the other parent can be reached. If you do encounter a problem that may cause you to be late, call immediately, apologize and offer to give the other parent make-up time.

4. Recognize that your children want to share the holidays with both of their parents.

Even if you dislike your ex-partner, in all likelihood your children still love and want to spend meaningful time with him or her during the holidays. Facilitating that time will make your children respect you. Interfering with that time will make your children resent you for spoiling their holidays.

5. Mind your own business.

You wouldn’t want your ex-partner to tell you how or with who to celebrate the holidays, so don’t try to tell him or her how to celebrate them. Even if you dislike your former partners’ traditions, in-laws or new significant other, keep your mouth shut unless they pose a real danger to your children.

6. Keep your focus on your children during the holidays.

Finally, remember that the holidays should be about creating wonderful memories for your children. Avoid the temptation to make the holidays about you and your needs.

Cooley & Handy, Attorneys at Law focuses its practice in all areas of family law, including divorce, custody and support.


Cooley & Handy Obtains Extraordinary Reversal in Supreme Court of Pennsylvania of Superior Court Decision Quashing Appeal of Paternity by Estoppel Case as Moot

After a lengthy and, at times, frustrating legal battle, Cooley & Handy secured their clients’ right to appeal an adverse paternity by estoppel decision in the Supreme Court of Pennsylvania. On November 9, 2011, the Supreme Court reversed the Superior Court’s decision that quashed the appeal in the paternity by estoppel custody case as “moot.” The Superior Court had quashed the appeal as moot because DNA blood testing had already occurred, which confirmed a third-party’s status as the child’s biological father. In reversing the Superior Court, the Supreme Court reaffirmed its prior holding that orders for genetic testing involving issues of paternity by estoppel are subject to immediate appellate review. The Supreme Court’s decision represents a significant victory for Cooley & Handy’s clients.

This case arose out of a strongly contested Bucks County child custody case, with the primary issue being the theory and application of paternity by estoppel. The litigation began when an alleged biological father (the “Petitioner”) filed a Petition for Custody of a child. The child was born during the mother’s marriage to another man (the “Father”), having been conceived as the result of an illicit affair between mother and Petitioner, unbeknownst to Father. The child was raised, along with his two older brothers, as a child of the marriage, in a loving and happy environment. After mother and Father’s divorce, the child was subject to an equally shared custodial arrangement between them. The Petitioner, who had been a close family friend of mother and Father’s during their marriage, was aware at all times of both his likely parentage of the child and of Father’s status in the child’s life, and he knowingly permitted Father to raise the child as his son, both emotionally and financially. For at least four and a half years, Petitioner stood by, though he knew that the child might be his biological son, and never attempted to assert any parental rights.

Cooley & Handy defended mother and Father in the custody proceedings instituted by Petitioner. During the lengthy trial, mother and Father vehemently emphasized to the Bucks County trial court that paternity by estoppel should preclude Petitioner from asserting any custodial rights over the child. They argued that Petitioner knowingly permitted Father and son to establish a strong parent-child bond and that he acquiesced in Father taking on the role of father in the child’s life. Under the mandatory paternity by estopple analysis, the law should not allow Petitioner, a third party, to interfere in the firmly established parent-child bond that had already been established between Father and son.

Notwithstanding their sound argument, the trial court repeatedly diminished application of the paternity by estoppel analysis in the case and stated that Father’s role in the child’s life was, essentially, irrelevant. It held that Petitioner was not equitably estopped from seeking custody of the child and that he was entitled to DNA blood testing and ordered such testing. Mother and Father appealed the trial court’s decision to the Superior Court of Pennsylvania based on the trial court’s misapplication of the paternity by estoppel analysis. In the meantime both the trial court and the Superior Court refused to stay the order for DNA blood testing pending appeal and subsequent testing confirmed that Petitioner was in fact the child’s biological father (although that information was not revealed to the child).

In a cursory opinion, the Superior Court of Pennsylvania dismissed the appeal as moot because mother, child and Petitioner had already undergone the court-ordered DNA blood testing which revealed that Petitioner was, in fact, the child’s biological father. By quashing the appeal as moot, the Superior Court, however, overlooked the fact that Petitioner’s biological status in relation to the child was not the pertinent inquiry in a paternity by estopple analysis. Mother and father then filed a Petition for Allowance of Appeal before the Pennsylvania Supreme Court.

While the appeal of the Superior Court’s decision was pending in the Supreme Court, Petitioner filed for an emergency hearing for custodial time in the trial court. In complete contravention of the Pennsylvania Rules of Appellate Procedure, and over mother and Father’s strenuous objections, the trial court proceeded with the hearing on the custody matter, notwithstanding the pending appeal on the estoppel and DNA testing issues. At the conclusion of the hearing, the trial court entered a custody order granting Petitioner custodial time with the child. Mother and Father’s request to stay such order from the trial court was denied.

Anticipating that the trial court would ignore the Pennsylvania Rules of Civil Procedure and enter a custody order while the paternity by estoppel appeal was pending in the Supreme Court, attorneys at Cooley & Handy worked to obtain a stay of the trial court’s proceedings in the Supreme Court while the custody case was being tried in the trial court. Cooley & Handy’s attorneys successfully convinced the Supreme Court on an emergency basis to stop the trial court’s implementation of the custodial order. They reiterated that the trial court’s proceedings and custody order were in direct violation of the Pennsylvania Rules of Appellate Procedure and contrary to the Court’s prior holdings, which dictate that a trial court’s paternity by estoppel analysis is immediately subject to strict review by an appellate court. Mother and Father argued that, because blood testing is entitled to interlocutory review, the Supreme Court implicitly directs that such orders be stayed pending such review. Cooley & Handy explained that an immediate stay of the lower court’s order and proceedings was warranted since grave and irreparable harm to the child and his Father would result from enforcing the custody schedule and openly questioning Father’s parental status. In a crucial victory, the Supreme Court agreed and stayed the trial court’s improper custody order until it decided mother and Father’s appeal on its merits.

In reviewing the merits of mother and Father’s appeal, the Supreme Court agreed that the Superior Court erred when it determined that the paternity by estoppel issue was moot simply because the DNA blood testing had already occurred. As Cooley & Handy had argued all along, the Supreme Court reiterated that genetic testing does not resolve estoppel issues – rather the focus of paternity be estoppel principles is wanting to ensure a child’s security in knowing that the man with whom he has formed a father/son bond is, in fact (legally and otherwise), his father. The Court further reiterated that genetic testing is immediately appealable in estoppel cases and remanded the matter to the Superior Court to consider the merits of mother and Father’s equitable estoppel or paternity by estoppel argument.


Attorney’s Fees Awarded for Frivolous Appeal In Pennsylvania Custody Case

Cooley & Handy’s attorneys successfully convinced the Superior Court of Pennsylvania to sustain a Bucks County trial court’s award of attorney’s fees and to award their client additional attorneys’ fees for having to litigate a frivolous appeal.

The parties in the case were involved in a highly contentious divorce. As part of the parties’ Property Settlement Agreement resolving the equitable distribution matters related to their divorce, husband was to cooperate in all aspects of the sale of the parties’ marital residence. Husband, however, in violation of the terms of the parties’ Property Settlement Agreement, “engaged in dilatory tactics and erected barriers to the sale of the marital property.” In response, wife filed a Petition for Contempt.

After a hearing on wife’s petition, the trial court found husband, who is also a practicing attorney in Bucks County, in contempt of the Property Settlement Agreement and awarded wife attorney’s fees.

Husband appealed the trial court’s award of attorney’s fees to the Superior Court of Pennsylvania.

On appeal, Husband argued, among other things, that the trial court’s finding of contempt and award of attorney’s fees was based upon its “partiality, prejudice, bias or ill will” towards him and constituted an abuse of the trial court’s discretion. In response, Cooley & Handy argued that Husband’s conduct throughout the parties’ divorce litigation supported the trial court’s finding of contempt and award of attorney’s fees. Cooley & Handy further argued that Husband’s arguments in his frivolous appeal contained “false, irrelevant, unsupported and unethical accusations,” and, as a result, Wife should be awarded additional attorney’s fees for having to litigate the appeal. The Superior Court agreed.

The Superior Court found that Husband asserted false accusations against Wife, as well as “disparaging, inaccurate, and unethical mischaracterizations of the trial court” in his brief. It also noted that the trial court had previously warned Husband against casting such inaccurate and inflammatory accusations, even threatening to report Husband, a licensed attorney, to the Pennsylvania Supreme Court’s Disciplinary Board for such conduct. Finally, the appellate court found that Husband had continued his “obdurate and vexatious” conduct on appeal, warranting the imposition of additional sanctions.

As a result, the Superior Court not only sustained the trial court’s original award of attorney’s fees, but also, in an unusual move, awarded Cooley & Handy’s client, wife, additional reasonable attorneys’ fees for having to litigate the frivolous appeal.


Karen C. Graham Joins Law Firm of Cooley & Handy

Karen C. Graham, Esq. has joined the Doylestown law firm of Cooley & Handy.  The firm concentrates its practice in family law and personal injury law in Bucks, Montgomery and Philadelphia Counties.

Ms. Graham is a graduate of Temple University, Beasley School of Law. Ms. Graham served as an Associate Editor for Temple’s International and Comparative Law Journal and was inducted into the Rubin Public Interest Law Honor Society.  Ms. Graham was also a student mediator with Temple Legal Aid’s Domestic Relations Mediation Clinical Program, providing pro bono custody mediation services to Philadelphia County participants.  In addition, Ms. Graham clerked for the Honorable Robert J. Matthews in the Philadelphia Court of Common Pleas, Family Division.

Prior to joining Cooley & Handy, Ms. Graham was employed at Berner Klaw & Watson, a well-regarded family law firm in Center City Philadelphia.  While there, she gained extensive experience representing clients in Pennsylvania divorce and support matters.

Ms. Graham’s practice areas include divorce, custody, support and adoption.  Ms. Graham also provides custody mediation services as a trained and experienced custody mediator.

Ms. Graham graduated magna cum laude from the University of Pittsburgh, where she received a B.S. in Psychology.

“Karen brings a wealth of experience in divorce, child custody, mediation and support matters to our firm,” says Kevin Handy, a principal in the firm.  “We are convinced that Karen’s experience will prove to be an invaluable asset as we continue to serve our expanding clientele.”


Cooley & Handy Challenges Order Requiring Father to Take Down Website

Divorced Father Challenges Judge’s Order Forcing him to Take Down Anonymous Website and Blog About his Ex-Wife and Divorce on First Amendment Grounds.

Divorced Father Claims that Bucks County, Pennsylvania Judge’s Order Requiring him to Take Down a Website called “” and Prohibiting him from Ever Mentioning his Ex-Wife or Children on any Public Media in the Future is an Unconstitutional and Unenforceable Restraint on Free Speech.

Doylestown, PA (July 11, 2011) – A divorced father is challenging an order entered by a judge in Bucks County, Pennsylvania requiring him to take down a website on which he writes about his ex-wife, his divorce and his custody case. Although the website has the unflattering name domain name “,” all of father’s posts to the website about his ex-wife and his cases are anonymous. According to the father, his ex-wife discovered the website accidentally while researching child support issues involving orthodontic treatment on the Internet and the website appeared high in the search rankings. The ex-wife apparently recognized the content of some of her e-mails, which were posted in a redacted format on the website. Shortly thereafter, the ex-wife asked the court to order the website shut down.

Despite the website’s name, the content of the website is not limited to the divorced father’s posts about his ex-wife and divorce. The website, which is actually owned and controlled by father’s girlfriend, also includes a significant amount of other materials, including discussion forums and resources aimed at helping individuals cope with the difficult issues that arise in divorce and custody cases. According to the divorced father, the website receives over two hundred thousand visitors per month.

Although the website initially started out as a way for father to vent about his divorce and ex-wife, it quickly transformed into a community forum intended to help others going through similarly difficult and emotionally challenging divorces and custody cases.

According to the father:

The site is intended to help people in similar situations. I always felt like no one really knew or quite understood the level of chaos that existed in my life, and the website was a way to express it without burdening others with such horror or having to explain and re-explain myself. I felt that it was a way for me to tell the truth of my experiences but to no one in particular.

That is why I started posting to the site in January of 2008. Soon thereafter, I started getting an incredible amount of feedback from people going through similar situations that felt as isolated as I did. That is when the site took on a more meaningful purpose, letting others know that they are not alone in their difficulties. I pray that realization prevents them from feeling trapped like I did. At the time, I felt that I had nowhere to turn. Had I discovered a place like this a long time ago, I may have been compelled to make better choices earlier in my relationship and case. Maybe I would have been more honest with myself and with others about what I was going through and gotten help and guidance sooner for my children and myself.

Despite the website’s apparent popularity and inclusion of unrelated content, a judge and former district attorney in Bucks County, Pennsylvania summarily ordered it shut down on June 6, 2011 without a hearing or testimony. The specific language of the order, entered by the Hon. Diane E. Gibbons states that “Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant events.”

Father and his girlfriend have appealed the judge’s order to the Superior Court of Pennsylvania claiming that the judge’s order violates the rights guaranteed them under the First and Fourteenth Amendments to the United States Constitution.

“The judge’s order is a classic example of an overly broad and unenforceable prior restraint on free speech” according to the father’s attorney, Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy. “The order is constitutionally over broad because it clearly prohibits speech that is protected by the First Amendment.”

Although the precise reasoning behind the judge’s order is unclear, the judge presumably issued the order in an attempt to shield the parties’ children from father’s complaints about his ex-wife. There was no evidence presented at the hearing, however, that the children had even seen the website, let alone were harmed by it.

“Even assuming that the court could shield the children from exposure to father’s comments on the website in a constitutionally acceptable manner, which is big assumption, there are many less drastic ways for the court to accomplish that goal without shutting down an entire website. For example, the court could have simply ordered ex-wife to monitor her children’s Internet usage.” according to Mr. Handy. “In the context of the First Amendment, the Supreme Court requires the Government to ‘narrowly tailor” orders restricting speech. The court cannot use an axe where a scalpel will due.”

Father also claims that he never intended for his children to read his posts and that they were directed at other adults going through similar situations.

Mr. Handy points out that the order was issued just in advance the U.S. Supreme Court’s June 27, 2011 decision in Brown v. Entertainment Merchants Association, in which the Court, in striking down California’s ban on the sale of violent video games to minors, reaffirmed the principle that the Government may not restrict otherwise constitutionally protected speech for the ostensible purpose of protecting children.

“Time and time again,” Mr. Handy notes, “the Supreme Court has reiterated that courts and the Government may not reduce the adult population to only what is fit for children.”

Judges in custody cases often enter orders that purport to restrict what one or both parents may say to each other or around their children. Those provisions, however, are rarely challenged or enforced. In the past, complaints by spouses about their exes were generally limited to conversations with family and friends. The Internet and the ability to post negative comments about ex-spouses indefinitely on social media such as Facebook, Twitter or personal blogs, however, has increased awareness of the issue and the perceived problem.

In 2008, a judge in Vermont in a comparable case ordered a man to take down “any and all Internet postings” about his ex-wife. The judge, however, subsequently reversed himself after the man raised similar First Amendment issues. The case was Garrido v. Kranansky.

“Individuals involved in divorces or custody disputes have no less constitutional rights than other individuals,” claims Mr. Handy. “A judge may no more restrict a parent’s right to free speech that she subjectively finds objectionable than the government can for any other group or individual.”

Cooley & Handy represents individuals in personal injury, class action, divorce, custody, and other litigation in Bucks, Montgomery and Philadelphia Counties and throughout Pennsylvania.

© 7/12/11 Cooley & Handy


Cooley & Handy Obtains Substantial Settlement in Lock Haven University Assault Case

Cooley & Handy recently obtained a substantial cash settlement in a personal injury case for a 21 year-old Lock Haven University student who was severely injured after he was assaulted while at college. The plaintiff was injured when he attempted to intervene to break up a fight started by six young men who did not attend the university. As he approached the fight, the plaintiff was pushed by one of the young men, tripped, fell back and struck his head on a concrete sidewalk.

As a result of falling and striking the sidewalk, the plaintiff suffered a serious traumatic head and brain injury, including a skull fracture running from the back center of his head through his cheek and nose. Following the accident, the plaintiff was put into a medically induced coma for several weeks and surgeons had to remove a section of the plaintiff’s skull to relieve pressure on his brain. Miraculously, the plaintiff survived his injures, but had to undergo several follow-up surgeries and intense rehabilitation, including learning to walk, talk and eat again.

Cooley & Handy overcame several challenging legal obstacles to reach a settlement in the case.

First, the defendants in the case were all young men without substantial assets or the ability to otherwise satisfy a judgment. By pursing the case under a strict negligence theory however, and intentionally rejecting allegations of assault and battery, Cooley & Handy was able to obtain insurance coverage from several of the defendants’ parents’ homeowner insurance policies, which cover negligent acts but do not cover “intentional” acts, such as assaults. This theory also fit well with the facts of the case since most, if not all, of the defendants likely did not actually intend to injury the plaintiff, particularly to the extent of his injuries.

Second, because no witness could definitively identify the individual defendant that actually pushed the plaintiff, and all of the defendants denied doing so, Cooley & Handy had to proceed against all of the defendants under a theory of concerted tortious conduct or “enterprise liability,” which had the added benefit of making more than one of the defendant’s insurance policies available to satisfy a judgment. Pennsylvania law allows liability to be imposed on individuals who engage in concerted tortious conduct, such as the behavior that occurred in the case (i.e. starting and participating in a fight). See, e.g., Sovereign Bank v. Valentino, 914 A.2d 415 (Pa. Super. 2007),

The settlement was reached after extensive discovery and litigation in the case. The specific terms of the settlement are confidential. The lawsuit was filed in Montgomery County, Pennsylvania.

Cooley & Handy is a Bucks County personal injury law firm that represents plaintiffs in personal injury lawsuits in both state and federal court in Bucks County, Montgomery County, Philadelphia County, and throughout Pennsylvania and elsewhere.


Cooley & Handy Attorney Establishes that Biological Father may Challenge Putative Father’s Acknowledgment of Paternity on the Basis of Fraud

October 24, 2008 – In a precedential ruling, the Superior Court of Pennsylvania held that a biological father has the statutory right to challenge an acknowledgment of paternity on the basis of fraud, duress or material mistake of fact.

Cooley & Handy attorney Susanne M. Wherry, with co-counsel, successfully argued that silence, when good faith requires disclosure, can rise to the level of a fraudulent misrepresentation.

In R.W.E. v. A.B.K. and M.K., — A.2d –, 2008 WL 4684341, Mother and Putative Father were involved in an on-again/off-again relationship between February 2002 and November 2003. During one of the parties’ brief separations, Mother became sexually involved with another man (hereinafter referred to as “Father”). Soon thereafter, Mother and Putative Father reconciled and she ceased relations with the Father. Meanwhile, Father was deployed to Kuwait by the National Guard. Mother discovered she was pregnant in March 2004. Mother told Putative Father that there was a “50-50 chance” another man fathered her unborn child. They agreed that they would never tell Father about the pregnancy.

Putative Father and Mother generally resided together for the duration of her pregnancy and he was present at the child’s birth on November 12, 2004. Putative Father signed an acknowledgment of paternity a few days after the child’s birth, and was named as the father on the child’s birth certificate. Within a year, the couple separated again. Custody actions were filed on behalf of both parties (Mother and Putative Father).

It was not until January 2006 that Mother informed Father of his possible parentage. He immediately asserted his parental rights and became active, both emotionally and financially, in the child’s life. Father was soon joined as a defendant in the custody litigation. Ultimately, genetic testing confirmed that he was the biological father of child. Soon thereafter, Father filed a Petition to Vacate the Acknowledgment of Paternity. The trial court found that Mother and Putative Father’s “agreement” was intended to defraud Father of his paternal rights, constituting fraud and, therefore, it vacated the acknowledgment of paternity.

In an en banc opinion, the Superior Court emphasized that, when an allegation of fraud is injected in an acknowledgment of paternity case, the tone and tenor of the matter changes. The Court explained that silence may be characterized as a fraudulent misrepresentation when good faith requires an expression. The Court found that Mother and Putative Father’s agreement to choose Putative Father as the father of Mother’s unborn child, to forgo genetic testing to conclusively establish paternity, and to refrain from informing Father of his possible parentage, was intended to defraud biological Father of his paternity rights warranting a successful thirdparty challenge under the Acknowledgment of Paternity Statute. Consequently, the Superior Court affirmed the trial court’s ruling, holding that it properly vacated Putative Father’s acknowledgment of paternity and adjudicated Father the biological father of the child.