Friday, August 31, 2018

Hiding in plain sight: Pennsylvania turns a blind eye to unlicensed child care

Posted: July 14, 2018
Alivia Sawicki (l) and Jaimee Lee Gorman (r) 
Ed Copechal watched every morning as parents’ cars — at times, even local school buses — lined up outside Jaimee Gorman’s child care center on Fourth Avenue in Bristol Township.
“Everybody knew she was watching kids,” Copechal said.
Everybody, that is, but state regulators. They didn’t know about Gorman’s unlicensed and allegedly illegal business until after a 19-month-old girl she was babysitting died of suffocation on June 16, 2017. A state report says Gorman was watching nine children at the time, three times the limit for an unlicensed home day care.
The death of Alivia Sawicki in Gorman’s care inspired a three-month investigation by this news organization, which found evidence of dozens of unlicensed and possibly illegal child care providers in Bucks and Montgomery counties openly advertising online. Reporters obtained the information through publicly available sources state regulators acknowledge they don’t use, such as the U.S. Census, state business filings, municipal records and IRS data.
State officials acknowledged the Department of Human Services doesn’t actively search for illegal child cares and only investigates after someone complains. After receiving a list of 70 suspected unlicensed centers from this news organization, the state said it was investigating 19 businesses, and had issued one cease and desist order.
The state said other centers were “closed,” yet some told us they still were operating.
Informal and affordable
Nearly 2 million U.S. children under age 5 attend some type of home child care each week, according to the national nonprofit Child Care Aware of America.
Home settings are most popular with parents of infants and toddlers looking for a more informal, intimate and affordable child care experience. Home-based child care in Pennsylvania costs an average of $155 a week per child, versus $233 at a larger child care center, according to Child Care Aware.
But the smallest child care providers also are the ones most likely to fall outside minimum state health and safety standards, putting children at risk for harm and undermining state and federal efforts to improve child care quality, according to child care professionals and studies.
“It’s an underground thing people know about, but don’t do anything about,” said Minnesota attorney Tom Copeland, an expert in home child care businesses. “Are parents turning in illegal providers? I doubt it.”
Infants and toddlers are healthier and safer in child cares where quality standards are in place, according to child care experts and studies.
“That is the safety net. No one should be operating a program unless they are meeting all the licensing rules and regulations,” said Richard Fiene, a retired Penn State University behavioral science professor who has studied unlicensed child care in Pennsylvania. “No one should be operating below that floor of quality.”
The licensing process
In Pennsylvania, a home-based child care provider can watch an unlimited number of family members, as well as three children who are not family, without needing a license. The only caveat is they cannot care for more than two infants and three toddlers under age 3 at the same time. Licensed home child-care providers can watch up to six children who are not related to them.
Barbara Kristiansen
Pennsylvania’s licensing requirements are extensive. Home child care operators must complete a two-part orientation within 12 months before opening a business; if an applicant fails to open within a year, the process restarts.
Providers must be a high school graduate or equivalent. FBI and state police criminal background checks and child abuse clearances are required for anyone over 18 living in the home; staff must be certified in CPR and first aid, and are required to complete annual child development training and more.
Applicants may also be required to obtain variances or other special approvals from local municipalities. A local use and occupancy permit is required for a state child care license.
Earlier this year, Barbara Kristiansen started $150,000 in renovations at her Warrington home to turn it into a home day care. In March, she received a permit to renovate the basement into a child care center for up to six children, as well as a use and occupancy permit for the business, according to township zoning records.
Months later, a sign planted on the front lawn says the business is accepting enrollments for summer and fall. A website and Facebook page promote the day care as “small by design.”
But the child-friendly basement classroom and jungle gym in the backyard were empty as of early July. Kristiansen said she’s still waiting for the state to issue her a child care license, a process she started in February.
“I was amazed at the process to get to be a small, little home center. I’m not saying that’s bad. That’s good,” she said. “If you’re a novice at this, you’re not going to know the seriousness. You may think you’re just babysitting or playing with kids, but, you know, watching someone else’s most important possession is a really big responsibility. You want to find out all the information you can. This is a business.”
But not everyone sees it that way, Kristiansen added.
“I know, personally, at least 10 people running unlicensed day cares, and that’s within a 10-mile radius,” she said.
Parents unaware
Since home day cares are considered less formal settings, many parents and even providers don’t ask about licensing or don’t think it’s needed, Copeland said.
Kelly Taylor learned about licensing when she was interviewing a home child care provider she eventually hired.
“To be honest, she (the provider) was the one who mentioned it,” said Taylor, whose now 7- and 8-year-old children spend summers with Donna Archer, who runs a state-licensed child care out of her Bristol Township home.
First-time mom Jenny Salvatico, also of Bristol Township, was surprised to learn the amount of training and paperwork required to license home child cares. Her 1-year-old son also is in Archer’s care.
Donna Archer
“I just thought people did this because it’s an extra way to make money as a side gig, or to stay home with their kids,” Salvatico said.
Kathy Watson, R-144, of Warrington, and chair of the House Children and Youth Committee, believes resistance she has seen to more third-party oversight of home child cares is rooted in cultural views that government should not regulate anything that happens in private homes.
“They take the money, but they don’t see themselves as a business because historically that wasn’t considered a business,” Watson said. “Culturally, we need to educate people across the state that this is a kind of business that is worthy of regulation because it’s not producing widgets, these are children.”
Death of a child
The death of a child while in the care of people other than family appears to be a relatively rare event, but it happens more frequently in an unlicensed setting, or in a private home, according to state records.
An analysis of state reports show at least 14 children in Pennsylvania have died in the care of unlicensed child care providers since 2008, compared to 11 at licensed providers. Twenty deaths occurred in homes over that time span, records show.
A national study released in 2005 found that children watched in private homes were 16 times more likely to die than children at child care centers, and had a higher risk for drowning, suffocation and shaken-baby syndrome.
In a study released in April, Washington state pediatrician and SIDS researcher Rachel Moon concluded that unsafe sleeping situations were “particularly acute” with unlicensed home child care providers who lacked training and were unaware of new research on safe sleeping.
At least seven Pennsylvania infant deaths in child care settings have been ruled as SIDS-related since 2008, and state-mandated death reviews for those cases mentioned the infant was placed in an unsafe sleeping position or environment.
Two-month-old Dylan Johnson was among them.
The Butler County coroner ruled Dylan died of Sudden Unexplained Infant Death after he was found unresponsive in a playpen, where he was placed unsupervised for a nap for at least 30 minutes. The manner of death was left undetermined, according to a state-mandated review of the circumstances surrounding his 2015 death.
But what was clear was Dylan was one of 12 children in the care of an unidentified woman described in the report as a “babysitter.” Among them were eight infants and toddlers, three more than state regulations allow for one adult.
The death review failed to suggest the woman was operating a suspected illegal child care. Instead, it said the babysitter “did not consider herself a day care, she just helped people by babysitting,” and she “rarely” had as many children as the day Dylan died.
The woman was not charged criminally, but the state issued a cease and desist order, which would make it “very difficult” for the woman to obtain a child care license in the future, according to the report. But she could still watch up to three children at one time as a legally unregulated provider.
Tough to investigate
Roughly two years ago, 28-year-old Rebecca Lane opened a home day care for children under age 5. She registered her limited liability corporation with the state. She promoted her business online. She hired an employee when she reached six children, though state regulations don’t require it.
She thought she was doing everything right.
Earlier this year, however, a state child care inspector showed up at her Bristol Township home to investigate a report she was operating illegally. Lane learned she was watching twice as many kids as allowed without a license.
“It was scary. I didn’t know what was going to happen,” Lane said. “I was very apologetic. I would never want this to happen to anyone.”
Since that day, Lane has been working to secure her state license and required local municipal approvals. She still watches kids, but no more than three at one time, she said.
Lane is cooperating with state regulators, but not everyone in her situation does. And the state is limited in its ability to act against unlicensed home day cares, since it has no authority over them.
“We regulate child care facilities, we don’t regulate people’s homes,” Department of Human Services spokesman Colin Day said. “It’s a different ballgame.”
Investigating and penalizing unlicensed child cares can be a long and potentially moot process in all but the most serious circumstances, as illegal operators can take steps to avoid penalties and slip back under the state radar.
Last year, Pennsylvania investigated 201 complaints of suspected illegal child care operations. It issued 68 cease and desist letters, including four in Bucks and Montgomery counties, according to records provided by the Department of Human Services and its licensing arm, the Office of Child Development and Early Learning (OCDEL).
How many centers were closed is unknown. The state doesn’t post information online about child cares it’s investigating. It also doesn’t post the outcomes of those investigations on its website.
State regulators also don’t actively look for suspected illegal child cares, instead relying on the public to report them, Day said.
Alivia Sawicki
And finding evidence of an illegal child care operation can be a challenge. Absent a search warrant, the homeowner can order an inspector off a property. With no access, an inspector can only report what activity is observed outside, and what neighbors say.
After Alivia Sawicki’s death last year, state inspectors twice visited Gorman’s Bristol Township home, after receiving a report she was watching nine children the day the toddler died. No one was home either time. The inspectors were told the family had moved and left no forwarding address, according DHS.
The investigation was closed after local authorities told DHS that all the children in Gorman’s care the day of the death were her relatives, meaning she did not need a license.
Nine months later, though, the Bucks County District Attorney reopened the criminal investigation and charged Gorman with operating an illegal day care after authorities confirmed at least four of the nine children were not family members. The charge was later changed to endangering the welfare of children; if convicted, Gorman would be prevented from opening another licensed child care.
It is unknown if DHS reopened its investigation after Gorman’s arrest. It is not specified in the review of Alivia’s death, and DHS did not respond to a follow-up inquiry from this news organization.
Even after complaints are filed, it can take weeks before an investigation is opened, under current DHS policy. Complaints with an indication a child has been harmed must be started within five days, but it can take 15 days or longer for those deemed medium or low risk, said Tanya Vasquez, bureau director of certification services for the OCDEL.
A provider watching too many children is considered a medium risk, Vasquez said.
Inspectors have more than a month to make a final determination, which is then forwarded to a DHS deputy secretary to decide if a cease and desist order is warranted.
Child care professionals also suggest the number of child care inspectors the state employs could contribute to delays in investigations and weak follow up.
Pennsylvania employs 105 inspectors, and there are six vacancies, all in the southeastern region of the state, which includes Bucks and Montgomery counties.
That works out one inspector for every 75 licensed child care centers. That’s better than four years ago, when the ratio was 1:143, Day said. State legislators approved a funding increase to hire more inspectors in 2015.
But organizations like Child Care Aware and the National Association for Regulatory Administration, a national nonprofit association that represents human care licensing, would like to see the ratio closer to one inspector for every 50 licensed child cares. They believe that reducing inspector caseloads would ensure more frequent and thorough on-site monitoring and investigations.
Pennsylvania Family Support Alliance CEO and President Angela Liddle said the low number of inspectors was not a shock; most state agencies are underfunded and it leads to delays and backlogs.
“I’m surprised we don’t hear about the more abuse, more fatalities, more near-fatalities in some of these settings,” she said.
Pennsylvania day cares that are ordered to shut down have 30 days to appeal. And even after that deadline passes, the state has no legal authority to immediately shut down an illegal child care without an indication of imminent life-threatening danger, Vasquez said. The state must ask a judge to order closure, though it can issue fines that start at $25 a day.
Penalties can be avoided if the operator agrees to reduce the number of children to no more than three, which removes them from state oversight. The operators the state listed as closed who told this news organization they remained open claimed they reduced reduced the number of kids they were watching.
“We see that often,” said Diane Michel, an OCDEL program executive.
Michel also acknowledged that her agency is aware of home child care providers who have been issued “multiple” cease and desist letters after breaking promises not to take in more children than allowed without a license. She described those situations as “not frequent.”
Hard to find
Five years before Gorman moved into the rental home in the 1100 block of Fourth Avenue in Croydon, another child care business, “Ms. Stacy’s Child Care,” operated there in 2011, according to a Yellow Pages listing still available online.
The state has no record a licensed child care ever operated at that address. Bristol Township also has no record of issuing a use and occupancy permit or special exception variance for a home-based day care at the address, according to property records.
When “Ms. Stacy’s” closed and other details are unknown. A phone number listed for the business is no longer in service.
The ability for illegal child cares to hide in plain sight is unique, according to Copeland, the child care business expert.
“If I go into any town in Pennsylvania and open a restaurant without following regulations, I couldn’t do it. If I opened up, I’d be shut down immediately,” he said. “But I can open an illegal child care program and operate unimpeded for a long time, if not forever.”
Research shows that unlicensed home child cares typically have a high turnover rate, which makes it hard for regulators to keep track of them.
The number of unlicensed child care providers in Philadelphia jumped 9 percent — from 1,095 to 1,205 — between 2014 and 2016, according to the Reinvestment Fund, a city nonprofit dedicated to improving the lives of low-income residents. But 25 percent of providers that were open in 2014 disappeared a year later; nearly 40 percent of those open in 2015 weren’t in business the year before, the study found.
U.S. Census and IRS tax data suggest there are an estimated 5,459 child care locations in Bucks, Montgomery and Philadelphia counties alone. But state records show roughly half that number are licensed providers.
Meanwhile, statewide the number of licensed family home child cares has declined 35 percent — from 2,647 to 1,727 — over the last four years, DHS data shows. Roughly half the number of licensed family home child cares are operating in Bucks and Montgomery counties compared to four years ago.
Pennsylvania is following national trends that show licensed home-based child care is declining as state and federal government efforts to better regulate them have increased, Copeland said.
The state toughened its requirements in 2015 requiring family home providers obtain regular operating licenses, which subject them to more intense DHS scrutiny, including, for the first time, unannounced yearly inspections and pre-opening inspections.
The new state rules were in response to 2014 changes in the federal child care subsidy program, which required that states implement stronger licensing standards for home child care providers receiving federal money. The federal change was inspired by calls to improve child care quality and ensure small child cares in private homes are following standards.
Tougher licensing standards may drive smaller child cares out of business if they can’t meet the minimum standards, said Fiene, the retired Penn State University professor. Whether more regulation encourages some of those providers to operate unlicensed is speculation, he added.
“My gut would be that for a small group of homes, this definitely could be the case,” he added. “I’m sure that many parents who need the child care to continue working will look the other way or justify in their own head that the care is just fine, even when it isn’t.”
Update: On July 13, Barbara Kristiansen obtained a license to operate the Children’s Learning Corner in Warrington, according to Ali Fogarty, communications director for the Pennsylvania Department of Human Services.

Bristol Township home child care providers explain why state licensing matters

Posted: July 12, 2018

Donna Archer
Clients call her Grandma.
For more than 20 years, Donna Archer has watched children inside her Bristol Township ranch home. She has watched children so long, she now cares for children whose parents she once watched. One parent she had as a child wanted to make sure she’d have an opening before his youngest child was conceived.
Archer has a state license to watch up to six children at one time who are not related to her. But no parent has ever asked to see it, she said.
Her experience isn’t unusual.
Jean Garnett has cared for children in her Bristol Township home for more than 30 years. No one has ever asked if she has a state license, which subjects her to unannounced state inspections to ensure she is meeting minimum safety, health and quality standards.
Child care experts said they are troubled, but not surprised, that parents don’t ask, or more likely don’t know to ask, about state licensing.
“I’ve got someone down the street who says, ‘I’m watching my kids, and two other kids, if you want to drop off kids,’ and a mile down the road there is a high quality program, most parents will go the path of least resistance,” said Richard Fiene, a retired Penn State University behavioral science professor who studied unlicensed child care in Pennsylvania.
Price and proximity are typically the first things parents look for in prospective child care, according to Fiene and other child care experts.
“If a place looks good and the person seems nice, that is a gauge,” said Carol Austin, executive director of the Delaware Valley Association for the Education of Young Children. “Parents don’t understand what a high quality child care program is.”
Holly Rhoades put her 2-year-old daughter, Gemma, with a woman who watched kids in her home. A friend who recommended the woman told Rhoades she knew first aid and had a state license. The woman showed Rhoades a notebook where she tracked when children were fed and diapers changes. Her rates were affordable, Rhoades added.
Yet Gemma would come home with more diapers than Rhoades thought she should have leftover and had more frequent diaper rashes. The last straw was a text message telling Rhoades another child scratched her daughter’s face, she said.
She switched Gemma to Archer’s child care. The difference is eye-opening, she said.
Archer follows a curriculum including colors, letters and numbers. She sends Rhoades photos throughout the day showing what Gemma is doing. She gives Rhoades frequent updates. She keeps detailed records on each child, which the state requires.
One day Gemma fell and bumped her head. Archer immediately called Rhoades and sent photos of the injury.
“I’m a first-time mom, so I’m super protective of her. I definitely want someone who is licensed with my daughter,” said Rhoades, a Bristol Township resident. “I feel it should be required. It’s an innocent life. They can’t take care of themselves.”
Parents too often don’t know what questions they should be asking child care providers because no one tells them, Garnett said.
“When I have parents who are leaving me, I give them a list of questions to ask,” she added.
Garnett operates the only family home-based child care in Bucks County with three out of four Keystone Stars, a widely recognized indicator of quality early childhood education. But quality doesn’t come cheap.
The cost of mandatory training, certifications on topics like recognizing child abuse, safe water play and safe sleeping environments, and related expenses comes out of her pocket, she said. The same for any home upgrades required to meet standards.
“But it’s not something you wouldn’t want for your children,” she said. “Especially home providers, it being your home, you live here day to day. There are things you can easily overlook.”
The average Pennsylvania home child care provider watching six children brings in less than $950 a week before taxes, based on estimates from the nonprofit Child Care Aware of America. Garnett and Archer declined to provide their weekly rates.
But illegal child cares often charge less than licensed family home child cares, which typically operate on razor-thin profit margins. Losing one or two families can result in financial instability and potential closure, according to Tom Copeland, a Minnesota attorney and national expert in home child care businesses.
“I can’t think of another industry that allows illegal competition to flourish without negative consequences to the violators,” Copeland added.
Taxpayers also get hurt. Potentially billions in uncollected local, state and federal tax revenues is lost to illegal child cares, which typically operate under the table, experts estimated.
More than 235,000 Pennsylvanians sought $129 million in tax credits for child and dependent care in 2015, IRS records show. The figure included an estimated $13.4 million in tax credits for Montgomery County taxpayers and $8.9 million in write-offs for qualifying parents and guardians in Bucks.
Every year, the IRS allows parents to seek millions of dollars in tax write-offs for child care. To qualify for those tax credits, families must provide the names, addresses, Social Security numbers or employee identification numbers of child care providers, who are required to be state licensed if they are watching six or more children.
But the IRS form that families fill out does not ask families if their provider is properly state licensed.
Licensing is the first thing Archer tells prospective parents looking for child care. She credits its required continuing education and training with preparing her for any emergency and keeping her updated on regulation changes.
“It’s a lot of work. There are many times I say, ‘Why do I do this? Why am I jumping through hoops?’” she said, before pausing to look at four infants and toddlers gathered at her dining room table one May morning.
“This is why. This is why,” she said, gesturing toward the children, tears rimming her eyes. “I wanted to make sure I did everything right. God forbid something happens here, I can say I did everything right.”
Staff writer James McGinnis contributed to this story

Bucks judge at center of Kayden Mancuso case wants records released

Posted: Aug. 24, 2018

The Bucks County judge facing unrelenting criticism for his handling of the custody battle involving a 7-year-old Lower Makefield girl murdered earlier this month during a court-ordered visit with her father hopes the public will soon get a chance to access court records that are normally kept confidential.
Bucks County Judge Jeffrey Trauger
“Normally, these proceedings are not released as they include very personal, confidential and sensitive information about the parents and children,” Judge Jeffrey Trauger wrote in an Aug. 22 letter to the Pennsylvania Judicial Conduct Board and Gov. Tom Wolf. “However, this case now demands a departure from that past practice as it now comes before your review.”
The four paragraph letter — obtained by this news organization — offers Trauger’s first comments since the Aug. 6 death of Kayden Mancuso, who was found dead at the Philadelphia home of her father, Jeffrey Mancuso, who also killed himself, a crime that has focused international attention on child custody decisions.
Trauger wrote that he hoped the media and public will soon be given access to the “complete case record including, but not limited to, transcripts of all witness testimony, trial exhibits, custody reports, psychological reports, and all other evidence presented to me.”
He added that he hoped the tragedy could serve as a “teachable moment for all parents, the media and the public.”
“Unfortunately, judges sitting in family court proceedings too often see toxic and bitter parental communications and conflict,” Trauger wrote. “Many custody cases become more about a struggle for power and control between the parents than a search for the best interests of the children.”
The letter was written days after the Wolf administration referred complaints about Trauger to the Pennsylvania Judicial Conduct Board for review at the request of Kayden’s family, who are demanding that Trauger be removed from the bench. They contend the judge mishandled Kayden’s custody case and it directly contributed to her murder.
Jeff Mancuso and Kayden
In Pennsylvania, judges can be removed only through sanction by the Judicial Conduct Board or after impeachment and conviction in the General Assembly. Trauger was appointed to the Bucks County bench two years ago and re-elected to a 10-year term last year.
In a May custody order, Trauger granted Kayden’s mother, Kathryn Sherlock, primary custody and reduced visitation for Jeffrey Mancuso from four-day weekends to overnight visits every other weekend, according to the custody order.
The family contends Trauger should have ordered supervised visits with Mancuso, though it was not recommended by any doctor or court evaluator consulted in the case, according to the administrative office of Pennsylvania courts. Mancuso had a well-known history of violent outbursts and erratic behavior including arrests for assault; a court-order psychiatric evaluation for the custody case diagnosed him with major depressive disorder and suicidal thoughts.
In his court order, Trauger noted he had serious concerns about Mancuso’s violent history, poor judgement, and inability to accept responsibility for his actions, and urged him to get mental health treatment. Mancuso was never violent with Kayden, and the girl did not appear to be afraid of him, though she told a court evaluator she didn’t want to spend “as many days” with him and had witnessed his violent behavior, according to the court order.
After this news organization provided a copy of the Trauger letter, Jennifer Sherlock, Kayden’s aunt, issued a statement on behalf of the family.
“It is laughable that Judge Trauger is now seeking to utilize this horrific tragedy as a ‘teachable’ moment for parents, the media and public,” Sherlock said. “The family prays that Judge Trauger is immediately removed from presiding over any and all family court actions currently pending in Bucks County Court of Common Pleas as Judge Trauger is clearly unfit to do so.”
Rather than admit his own “culpability in this tragedy,” Sherlock said Trauger shifted the blame and asked the public to “educate themselves” on Pennsylvania law regarding child custody.
“A job that he himself clearly failed to do resulting in the murder of their daughter, Kayden.”

Attorney: Bensalem man kills himself in county jail day after sentencing

Posted: Aug. 24, 2018
Convicted in June of crashing into his ex-wife’s house and sentenced Friday to state prison, a Bensalem man has killed himself in county jail.
Charles Joseph Freitag, 57, took his own life ‪Saturday morning‬ at the Bucks County Correctional Facility, said his attorney Paul Lang.
Charles Freitag
County spokeswoman Juliet Kelchner confirmed the death as a “presumed suicide” ‪Saturday afternoon‬. No other information on the manner of death was released. A final report on the death was pending, she said.
″ I can tell you at this time is that it is under internal investigation as well as the detectives, though there does not appear to be any reason to believe it is anything but a suicide,” Kelchner said.
She added that mental health professionals were at the prison for those who needed anything after the incident.
Freitag’s death comes a day after Judge Diane E. Gibbons ordered him to serve six to 12 years in state prison for aggravated assault.
Prosecutors had accused him of driving his 1999 Ford Ranger pickup truck through the front yard and into the living room of his ex-wife’s house in Falls in September. Less than a year later, a jury found him guilty in June after two days of trial.
He allegedly made statements at the scene indicating he was suicidal, and required surgery for self-inflicted wounds.
Freitag was on a Level 3 watch based on the sentence he just received, Kelchner said. A Level 3 watch means that he is being checked on every 30 minutes by a corrections officer, she said.
He was housed in a general population unit, not in a locked cell, and he was out to receive medication in the morning, Kelchner said.
The time between when he was last checked and when the incident was reported was less than 20 minutes, she added.
Lang, who took over the case for sentencing, argued Freitag’s mental illness made a lengthy prison sentence inappropriate in his case.
At his attorney’s request, Gibbons allowed Freitag to be held in the county prison for a week before he was transported to state prison.
Freitag is the second inmate to die at the prison this year.
In January, 52-year-old Frederick Adami died of complications related to opiate withdrawal one day after he was arrested on an outstanding warrant.

Family law attorneys: Child custody cases are never clear cut

Posted: Aug. 13, 2018

Kayden Mancuso
Child custody cases are among the longest, most expensive, ugliest and difficult decisions judges face, but rarely do they end as tragically as the murder of a child, according to family law experts.
The death of 7-year-old Kayden Mancuso at the hands of her father, who then killed himself, has released a tidal wave of outrage in Bucks County and beyond. Much of the anger has been focused on Bucks County Common Pleas Court Judge Jeffrey Trauger, who oversaw the contentious custody case between Kayden’s parents, Jeffrey Mancuso, of Philadelphia, and Kathryn Sherlock, of Lower Makefield.
Sherlock and her family contend that Trauger ignored extensive evidence that Mancuso presented a serious danger to Kayden when the judge failed to follow a court psychologist’s recommendation for supervised visits as part of a final custody order handed down in May. An online petition through that calls for the Pennsylvania State Judicial Conduct Board to remove Trauger from the Bucks County bench had more than 30,000 electronic signatures as of early afternoon.
Family law attorneys interviewed by this news organization said parents have a constitutional right to custody and care of their children, and the courts generally agree children should have a relationship with both parents.
Jeff Mancuso and daughter Kayden
“Parents are presumed to act in their child’s best interest,” said Sarah Katz, an associate clinical professor of law at Temple University’s Beasley School of Law and former supervising attorney in the Family Advocacy Unit at Community Legal Services in Philadelphia. “The law presumes it’s good to have both parents in their life. The question is, at what point do we intervene when there are legitimate best interest concerns.”
Often, though, answers are not easily found, local attorneys said.
With virtually all child custody cases, the starting point is always that both parents will get visitation — or parenting time — with a child. The how and how much time is what gets hashed out based on available facts and what the court believes is best for the child, according to Jack Feinstein, a professor emeritus who ran a legal clinic at Rutgers University Law School in Newark New Jersey.
“The presumption is the noncustodial parent will get parenting time. That is basically a given in the court’s mind,” Feinstein said, “The court takes everything into consideration. If court thinks there is danger to the child that is credible they’ll want to hold a hearing before the visitation.”
Past violent behavior or criminal past isn’t automatically going to prevent a parent from being allowed contact with their children, if there is no evidence they have abused or threatened them, Feinstein and other attorneys said.
If the court is concerned a parent has serious behavior or mental health problems, it can order a psychiatric evaluation, anger management or parenting classes be completed before deciding visitation, he added. If a parent is accused of abusing a child, the courts can order a child protective services investigation and delay a decision on visitation until a report is issued.
“The court takes allegations seriously. They are not going to look to put a child in jeopardy,” he added. “It always depends on the circumstances of a particular case. Some parents will say anything to interfere with the other parent. The last thing a judge is going to want to do is have to deal with reporters and parents and police asking, ‘How did you allow this visitation?’”
Eight years ago, Pennsylvania underwent dramatic changes in its child custody laws, with new rules designed to hold Common Pleas Court judges more accountable for the reasoning behind custody awards. Among the changes was prohibiting the court from assuming custody should be awarded to a particular parent based on gender.
Kayden (l) and her mom Kathryn Sherlock
Other changes included requiring the court to address 16 custody factors and explain decisions in orders creating a case history for a future judge, and to identify and address any history of abuse, child protection involvement and criminal history before a final award is made.
The revised law also requires safety conditions be created in cases where the court finds an “ongoing risk of harm” to a child or abused parent exists and awards any type of custody to an alleged abuser.
“Good judges would have considered the factors now memorialized in the statute. Too often, busy judges were not articulating the reasoning for an award to the frustrations of parents and lawyers,” said Mary Cushing Doherty, a Doylestown family law attorney who helped get the revamped law passed in 2010. “Then an appellate court or another trial judge on review didn’t necessarily understand the basis for the award. It is important to understand the reasoning if a problem arises later.”
Also important to understand is that a custody case only goes before a family court judge after all other attempts through division programs fail to reach a custody agreement, said Cushing Doherty, an attorney with High Swartz, which has offices in Bucks and Montgomery counties.
Adding to the already tense and emotional situation involving two people who don’t get along, the judge is typically asked to make decisions with limited information about the parents, said Cushing Doherty, who has been in practice four decades.
While past allegations of domestic abuse are among the factors judges must weigh, the court also will scrutinize whether the abuse was against a parent or also the child.
But Katz, the Temple University law school professor, believes the current law doesn’t weight allegations of intimate partner violence as heavily as a minor drug conviction. Studies suggest there is a high prevalence of domestic violence allegations among the estimated 20 percent of child custody cases litigated in family courts, she added.
Sherlock obtained a three-year protection from abuse order against Mancuso last year, according to court records.
“That is one of the difficulties. It seems highly predictable in hindsight, but (judges) are seeing these type of situations and allegations day in and day out with these high conflict cases,” Katz added. “No judge has a crystal ball.”