Thursday, July 2, 2015
Imagine this fact pattern: You are a young professional, just getting your career started (still making payments on college and graduate degree loans, and only dreaming of the day you could make a down payment on a house). You receive an official-looking letter. The letter advises that under another state’s law, you may have a statutory duty to pay monthly “financial support” for a father who is unable to support himself, following a stroke that has put him in a public nursing home. Fairly stunning news, yes?
Now imagine that the father in question is someone you have seen only a handful of times since the age of about 10, when he and your mother divorced. The custody case that took place in the father’s home state was a tough one. Review of the evidence shows the father was either unable or unwilling to provide support for the family while they were together. Your father borrowed money from your mother’s family. He was manipulative, even to the point that he once kidnapped you as a young child and held you away from your mother. Ultimately, the court in that other state agreed that your mother should have sole custody. Your father never paid alimony to your mother or support for you as a child. Those college degrees were earned without your father’s support of any kind.
Tough to believe that authorities in the other state could possibly believe, even if they work in one of the few U.S. states that occasionally enforce claims made by nursing homes for filial support, that any support or maintenance award under these circumstances would be “fair.”
Add one additional complexity. Admittedly, it is a big one. The “state” requesting monthly payments is not next door to where you live, or even in the same country. It is across the Atlantic. The state is Germany. And you gave up your citizenship as a German long ago.
I have been given permission to write about this set of facts by the American adult child in question. Perhaps this post may generate additional legal assistance from someone with experience in a cross-border claim. These are the facts as I understand them.
Germany has its own version of what I call a "filial support" law, although it is far broader than Pennsylvania's controversial law. The German Civil Code at Sections 1601-1615, provides that when a person is "incapable" of maintaining himself, "lineal relatives are under an obligation to maintain" the individual. If one family member in the line of descent cannot pay in whole or part, the claim goes to the next.
The amount of any maintenance obligation is usually set according to the family member's "ability to pay," with a court having the power to decide what amount that might be if a request is not paid voluntarily. In their first letter, the German authorities warn that failure to cooperate can be a criminal offense; in a second letter, they seek records of annual earnings, but only certain expenses (rent, insurance and student debt), from the American.
Although a dollar demand is not clear from the letters in the current matter, it seems the claim is based on the father's continuing receipt of certain care services, priced at 1,300 euros per month (currently about $1,400 USD), that are apparently not covered by his pension.
Attorneys in Germany tell me that since 2009, Germany has a strict policy about seeking reimbursement for government costs for public care. One attorney advised that he has seen a 200-300% increase in such claims within Germany, beginning in 2011.
One 2014 treatise on European legal trends predicts that claims for “parental maintenance will be a big issue in the future.” The treatise warns that “Demenztourismus (so called dementia tourism)” may involve families placing elderly people in “remote countries to reduce costs of assistance and care.” But in the matter I’m describing, there is no such manipulation on the part of the adult child. Quite the opposite.
Ironically, it may have been because of an act of kindness that the American child has become the focus of Germany's request for "maintenance" payments, triggered by the child's search for the father when he failed to show up for a rare, if vaguely planned, "visit" to America in December 2014. In recent years, the father had become increasingly estranged from everyone, including other adult children in Germany with another ex-spouse. No one seemed to have information. Eventually the American adult child discovered him, seriously impaired by a stroke, in a German rehabilitation hospital and visited him briefly to express sympathy while trying also to reach out to half-siblings with the sad news.
The adult child lives in Pennsylvania. One suspects that it is not a coincidence that the German authorities have chosen to track down and target a Pennsylvania offspring for this request, given the fact that Pennsylvania is one of the few U.S. states with recent court decisions that aggressively hold adult children liable for nursing home costs. Still, I have not found U.S. precedent for this type of cross-border, international claim for filial support, one that goes well beyond parent-to-minor child support or even spouse-to-spouse support.
This is a new and potentially significant development, and Pennsylvania’s lone wolf status in U.S. filial support claims for nursing home costs may have actually attracted this cross-border claim, even though government authorities in Pennsylvania do not use filial support laws to seek direct recovery of public costs for long-term care. (Within Pennsylvania, the trend is that filial support suits are filed by nursing home facilities, usually after the state has denied an application for Medicaid for long-term care because of defects in the application process or "ineligibility" created by transfers.)
As you can perhaps imagine, payment or the prospect of defending oneself in a formal case is daunting for the offspring, triggering memories of childhood trauma. However, the child may have a chance of avoiding a court case over this surprise demand, if German authorities are willing to review and recognize the history documented in the German records from the divorce and custody award.
German law is somewhat more "understanding" about the potential complexities of family relationships than Pennsylvania law. In Pennsylvania, one of the few statutory defenses available is if the indigent parent "abandoned" the child during the child's minority for at least ten years (and even that tough Pennsylvania law threshold is probably satisfied here). In Germany, it appears that authorities have greater power to recognize that a family member's maintenance obligation "lapses completely if it would be grossly inequitable" to require payments. Under German law, "moral fault" of the indigent person is also an express basis for nonpayment or offset of any maintenance obligation. See German Civil Code Section 1611 (regarding "Restriction or end of [maintenance] obligation").
As a result of my research and writing on modern instances of "filial support" claims, I often have the opportunity to review claims that may never reach a court of record. Sometimes these are based in jurisdictions outside the U.S. For example, I have written in the past about significant single jurisdiction claims arising in China and Ukraine. But, I think that in my 20-some years of researching this intersection between family law and elder law, this cross-border demand for support of an elderly, non-custodial parent is one of the most stunning histories to arrive on my desk.
Of course, family members make voluntary cross-border financial payments of support all of the time, especially as loving, functional families are nonetheless forced apart geographically in struggles to survive after the world’s most recent economic crises. What strikes me as unusual here is that in a government agency's effort to collect cross-border filial support, the authorities have taken a preliminary position that "jurisdiction" over the foreign citizen should be easy, based simply on the fact of lineal descent.
American courts have long struggled with questions of personal jurisdiction in the domestic context for child custody or child support cases. The U.S. Supreme Court precedent has declined to allow passive contacts or mere visitation in the foreign state to serve as a sound basis for assertion of long-arm jurisdiction over a nonresident parent.
Feel free to write if you have suggestions or German experience in this area. This was a new one for me!