The Opioid Crisis and Its Impact on the Practice of Family Law

Mark A. Momjian, Momjian Anderer

The numbers are staggering. According to the Centers for Disease Control and Prevention, from 1999 to 2017, almost 218,000 people died from overdoses related to prescription opioids. That’s more than the combined number of residents in Allentown and Erie, the third and fourth most populous cities in Pennsylvania. Gov. Tom Wolf issued a proclamation of disaster emergency in early 2018, citing Pennsylvania’s rate of drug overdose as 36.5 per 100,000—a statistic more than double the national average. The opioid epidemic is by far the worst public health crisis in the nation, and according to a profile in the New York Times from October of last year, Philadelphia County has the highest overdose rate of any of the 10 most populous cities in America.

Many legal practices have been affected by the more than two million Americans addicted to opioids, from criminal law and bankruptcy, to labor and employment. But perhaps no practice has witnessed more of a dramatic impact than family law. Lawyers concentrating in domestic-relations have seen the steep rise in the number of dependency proceedings as a result of the opioid crisis. Minor children who have had one or both parents die from an overdose face placement in foster care. And there are many teenagers who have died from an overdose as well, leaving families reeling from the trauma of losing a child.

Addiction to opioids also has led to unprecedented child-custody litigation. Parents who become addicted to legal painkillers such as morphine, oxycodone or hydrocodone have had their legal and physical custody rights severely curtailed and, in some cases, suspended.

In ordering any form of custody, a family court judge must consider a parent’s physical and mental conditions, as well as his or her history of drug and alcohol abuse, see 23 Pa. C.S.A. 5328 (14) and (15). Almost invariably, child-custody cases involving allegations of opioid abuse lead to emergency filings for interim or special relief under Rule 1915.13 of the Pennsylvania Rules of Civil Procedure—in which a party seeks expedited hair-follicle testing or the entry of a temporary award of physical and legal custody. Long-established custodial arrangements are frequently disrupted, and children must transition to new schedules, ones in which they may have limited or supervised contact with the addicted parent.

In terms of the actual cases decided in Pennsylvania, the reported ones generally involve a minor child’s adjudication of dependency. Or they involve criminal prosecutions. Recently, the Pennsylvania Supreme Court held that a mother could not be classified as a “perpetrator” of child abuse under the Child Protective Services Law based on her use of opioids while pregnant, see In the Interest of L.J.B., 2018 WL 6816576 (Pa. 2018). But reported child-custody decisions are rare. In all likelihood, the parent with the opioid addiction does not have the financial ability to litigate the case, and more often than not, that parent faces enormous costs if he wants to enter an opioid addiction program. While some programs are free, others can cost thousands of dollars a day. Whether a custody litigant chooses out-patient detox or in-patient rehab, the sole focus is on improving the health of the addicted parent. The family court judge must have confidence that the minor child is safe in that parent’s custody.

Another area of family law practice affected by the opioid crisis is support law. With so many parents and spouses grappling with opioid addiction, masters and family court judges face scores of applications to reduce the payment of child and spousal support. These are challenging disputes, calling on litigants to fight over the range of an addicted party’s earning capacity. Sometimes the addicted parent’s efforts at rehabilitation are called into question. A generation ago, a parent addicted to alcohol might garner little sympathy from a fact-finder tasked with determining that parent’s net monthly income. Today, however, addiction to opioids must be examined contextually. If a parent undergoes dental surgery and takes opioids to relieve pain, and subsequently becomes addicted, that is viewed very differently than someone who takes another person’s prescription medication to get high. Both situations, however, require treatment and possibly counselling. But how much leeway the opioid-addicted litigant gets in support court can vary widely.

Another area tracked by family lawyers involves application of Pennsylvania’s law relating to indigent persons. In most child-support cases, a parent’s obligation to pay support ends when a child attains age 18 or graduates from high school, whichever is later, 23 Pa. C.S.C. Section 4321 (2). Post-majority support can be awarded in certain limited circumstances, such as when a child attains majority-age, but remains dependent due to an intellectual disability or congenital disorder, such as autism, see Carter v. Carter, 2017 WL 5941817 (Pa. Super. 2017).

But Section 4601 of Pennsylvania’s Domestic Relations Code obligates the parent of an indigent person, or a child of an indigent person, to “care for and maintain or financially assist” that indigent person. This statute is frequently overlooked by family lawyers, but it is one of the most sweeping “filial laws” in the nation. Most of the cases tried under this law involve a third-party provider suing an adult child or children to recover the nursing-home expenses incurred by an elderly parent, as in Health Care & Retirement of America v. Pittas, 46 A.3d 719 (Pa. Super. 2012).

The opioid crisis in Pennsylvania could potentially impact the number of cases brought under this law. For instance, if an adult child repeatedly fails to recover from opioid addiction, despite multiple attempts at rehab, if that adult child is adjudicated “indigent,” he or she (or a parent on his or her behalf) could sue the other parent to pay, or to contribute to, the adult child’s living expenses. The parent being sued must have the financial ability to support the adult child, but if liability is established, it is up to the court to determine the amount owed. And it doesn’t matter whether the “indigent” party is receiving public-assistance.

Pennsylvania’s law mandating the support of indigent persons looks antiquated to many who examine it for the first time, and that’s because it is. The roots of the law date back to the early 18th century, when “overseers of the poor” could force a family member to support “every poor, old, blind, lame and impotent person,” see Seymore Moskowitz, "Filial Responsibility Statutes: Legal and Policy Considerations," 9 J.L. & Policy 709 (2001). The colonial language just cited clearly clashes with modern sensibilities. But today’s codification of the law is also outdated. The only exception for a financially capable adult child to avoid paying support to an indigent parent is proof of abandonment for a period of 10 years during the adult child’s minority.

Technically, under the law, a child might have suffered physical or sexual abuse by a parent during his or her minority, but that is not a ground to avoid liability under Pennsylvania’s statute. But with so many adult children in Pennsylvania addicted to opioids, the paradigm has shifted. Family lawyers are waiting to see whether adult children will sue their middle-aged or elderly parents based on being “indigent,” or whether one of these parents will sue their estranged partner on the adult child’s behalf. It is groundbreaking litigation if it ensues, and while there was an attempt in 2015 by Pennsylvania’s legislature to abolish Section 4603, that bill (H.B. 242) was never considered by the House Judiciary Committee.

Because Pennsylvania is so heavily impacted by the opioid crisis, it is likely that our lower and appellate courts will continue to address conventional issues such as the effect of addiction on child support, child custody and dependency matters, as well as more novel issues of filial responsibility for adult children and the parents of adult children.

Mark A. Momjian is a co-founder of Momjian Anderer in Philadelphia. He is a member of the adjunct faculty at both Villanova University’s School of Law, where he teaches family law, as well as Drexel University College of Medicine, where he teaches mental health law to third-year residents.