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As Published on Post-Gazette.com

Impoverished Parents Deserve Their Day In Court

May 29th, 2016
By Rebecca Canterbury

In Allegheny County, courts frequently turn away low-income parents in child-custody cases simply because they cannot pay the exorbitant filing fees. This must change.

Astonishingly, parents who assert child-custody rights in Allegheny County must cough up almost $500 at the outset of the case. The fee for filing a custody complaint has risen to a whopping $337. Add another $150 in fees owed for court-ordered co-parenting and mediation seminars. Of course, that does not even begin to include the cost of hiring an attorney.

Such filing fees are insurmountable for many moms and dads, raising concerns that poverty alone restricts them from exercising what the Pennsylvania Supreme Court termed a biological parent’s “prima facie right to custody.”

Criminal defendants who are poor have a constitutional right to be represented by an attorney, at no charge. But indigent parents have no such right to free counsel even in legal proceedings where basic human rights are at stake, such as those involving the custody of their children.

In Allegheny County, low-income parents may petition the court to waive the mandatory filing fees. But the guidelines for granting a fee waiver in family court are anything but clear.

The Superior Court of Pennsylvania has issued opinions directing trial-court judges to consider a party’s totality of circumstances, including income, dependents, monthly obligations and debts. Such subjective criteria have led to inconsistent rulings.

In child-custody actions, domestic-relations officers in Allegheny County have the authority to grant fee waivers. But they do not just consider a parent’s income levels. They also look at a parent’s savings, which most low-income parents can ill afford to drain, and at their expenses, which usually are just enough to scrape by on. Shockingly, domestic-relations officers can even deny fee-waiver requests based on the merits of a case even before it reaches a judge.

If denied at the initial level, petitioners may then make their case to a family-court judge. But more than 60 percent of fee-waiver requests are denied, according to Allegheny County Custody Department Manager Amy Ross.

By contrast, the Allegheny County Public Defender’s Office takes a simple, objective approach by automatically appointing free attorneys to criminal defendants with income levels that fall within the federal poverty guidelines, taking into consideration the number of household dependents.

Indeed, plaintiffs in Allegheny County who seek Protection from Abuse Orders pay no filing fee at all and even receive a free attorney regardless of their income.

That’s right: A millionaire who files for a PFA gets a free lawyer. But poor parents seeking custody of their children often can’t even get the filing fees waived.

Perhaps that’s why some family-law attorneys and judges believe people are inappropriately using the PFA system as a backdoor to assert child-custody rights.

Last year, when I was a second-year student at Duquesne University School of Law, I worked as a certified legal intern drafting child-custody petitions and frequently seeking fee waivers for low-income clients.

One client, whom I’ll call Jane, was a single mother of four children. Jane sought to modify a custody order because her ex was preventing her from seeing their kids.

Jane was unemployed due to severe medical problems. She had no income and was living on just $347 per month in food stamps. My classmate at Duquesne drafted a petition to modify the custody order and request a fee waiver.

But a court administrator inexplicably denied the request to waive the $250 filing fee. A judge later upheld the decision on grounds that Jane’s bank statement reflected that there was $300 in her account. Sadly, they did not account for the fact that Jane’s rent and utility bills were coming due, for which she needed that money.

A classmate and I initiated a program to subsidize filing fees for applicants whose fee-waiver requests were denied. After several months of preparation and fundraising, we hope to launch the program this year.

While our efforts may bring relief to some, they will not resolve the problem of low-income parents being denied access to the courts. Unless family-court administrators implement an objective process for approving fee waivers for the poor similar to the public defender’s office, the doors to custody court will remain closed to many who cannot pay.