On September 9, 2016 the PA Supreme Court restricted Grandparents’ rights to seek partial custody of their grandchildren. The case, known formally as D.P. v. G.J.P., or the Ponko case, originated in Westmoreland County, and was argued before the Supreme Court earlier this year. Although the decision is very narrow, it could have far-reaching effects on grandparent’s rights in child custody cases in Pennsylvania.
In this case, the maternal grandparents (i.e. mother’s parents) brought a child custody action against mother and father seeking partial custody of the minor children. Mother and father were separated, but had not filed for divorce. They had no prior court involvement with regard to child custody, and were in agreement on all custody issues. A key fact in this case is that both Mother and Father were opposed to maternal grandparents having any custody rights.
The grandparents argued they had standing to seek custody under 23 Pa.C.S. 5325(2), which permits grandparents to seek partial custody anytime the parents had been separated for at least six months.The six-month separation requirement has been valid Pennsylvania law since 1985.
Mother and Father in this case argued that allowing the grandparents to seek custody against both their wishes, merely because they were separated, was a violation of their rights under the U.S. Constitution – particularly their Fourteenth Amendment rights of due process and equal protection. The crux of their argument was that, as parents, they have a fundamental right to raise their children as they see fit, so long as they are not committing abuse or neglect. Judge Smail in Westmoreland County agreed, and dismissed the grandparent’s case.
The Pennsylvania Supreme Court upheld Judge Smail’s decision. A majority of the Justices ruled that the six-month rule violated the parents’ fundamental right to raise their children without government interference. Although the ruling only restricts the ability of grandparents to seek custody of their grandchildren when parents are in agreement on that issue, this case could have far-reaching implications. It will be interesting to see what happens when courts are faced with other fact patterns, for example – what if one parent has sole legal custody of his/her children, with no involvement of the other parent? Can that parent, the sole decision-maker, slam the courthouse door on grandparents based on this case? What about non-married couples? These scenarios will play out in trial courts across the Commonwealth, so stay tuned.
The good news is that the case has no effect on grandparent’s rights in cases where the child has resided with the grandparent for a year or more, or where the grandparent is in loco parentis (acting as parent) to the child. Grandparents can also still seek primary custody in cases where their grandchildren are at risk because of abuse, neglect, or drug/alcohol abuse of a parent, or if the grandchildren are in the custody of CYS.
I have found that many of my estate planning clients breathe a sigh of relief after finally putting pen to paper and signing their will, trust, power of attorney, living will, or other estate planning document. They will often say something like “Wow, I’m glad that’s finally done!” I usually take the opportunity to explain that, while they may be “done” for now, a properly functioning estate plan requires vigilance throughout a lifetime.
If you listened to my WCCS radio show, “Marshall Law” last week, you will know that I recommend periodic meetings with an attorney to discuss and review your estate plan. Unfortunately, many people do not update their estate plan often enough (if ever). Failing to update your estate plan can have dire and surprising consequences. I have had to explain to more than one shocked beneficiary (or would-be beneficiary) that their mom, dad, a favorite aunt or uncle, or even their significant other, hadn’t updated their will or trust to reflect certain life changes.
Here are 7 life events that should trigger a review of your estate plan. In addition, you should have the plan reviewed by your attorney every three years.
These seven examples are the most common reasons you should review your estate plan. If you would like to schedule a consultation, Contact the Chriswell Law Offices at 724-465-5826. And remember — at my office, estate planning consultations are always FREE.
Over the Independence Day weekend, like many other Indiana County property owners, I received my notice of property tax reassessment in the mail. Just like many of you, my property taxes increased by about 35% effective for the 2016 tax year.
Many Indiana County property owners were surprised by the reassessment. My office has been fielding calls all week from taxpayers about challenging their new assessed value. How do appeals work? The appeal process for reassessed values in Indiana County is three steps:
1. An informal review at the Reassessment Center, which has been set up at the Indiana Mall. Many clerical errors or problems with your property description can be taken care of at this stage. You do not need the presence of an attorney at the informal review, but you may want to consult with one prior to attending.
Prior to the informal review, you should look at your property description and other detailed information on the Assessment Office Reassessment Website (Click “Courthouse Online” and enter the Control No. and Password provided on your reassessment notice.
2. A formal appeal Before the Indiana County Board of Assessment. At the formal appeal you will present a proposed value for the property and evidence, such as appraisals or photographs, to support that value. You must request a formal appeal by August 10, 2015. It is a good idea to be represented by an attorney at a formal appeal.
3. An appeal to the Court of Common Pleas. If you are unhappy with the board’s decision, you can appeal to a Common Pleas judge. The judge will schedule the case for a hearing. It is imperative (although not required) that you have an attorney at this stage. Many times, a negotiated settlement can be reached at the pre-trial conference.
If you have questions about appealing the reassessed value of your real estate, feel free to call my office at 724-465-5826 or contact me via this website or email.
Remember: Formal Appeals must be filed by August 10, 2015.
By: Marshall Chriswell
NBC News recently reported that toxic Radon Gas levels are at an all-time high in Pennsylvania, and seem to be continuing to rise. Some experts attribute the rising levels of Radon gas to natural gas extraction from shale rock formations, a practice commonly known as “fracking.” While this conclusion is nowhere near certain, increased Radon levels are a major concern for all Pennsylvanians.
What is Radon and Why is it dangerous?
Radon is a colorless odorless radioactive gas that is emitted from certain types of rock. When present in a home or other structure, it builds up in the basement or other lower levels of the building. Unsafe levels of radon can cause lung cancer. In fact, radon gas is the second-leading cause of lung cancer in the U.S.
What can you do about it?
The good news is that qualified home inspectors can test for radon, and advise homeowners or potential purchasers if unsafe levels of radon gas are present. If needed, a professional can install a radon mitigation unit, which is essentially a fan that evacuates harmful radon from the foundation of the home. Installing a mitigation unit is usually quick and fairly inexpensive.
When I meet with a potential homebuyer, I always recommend that they have a professional home inspection conducted, which should include a radon test. A qualified home inspector can identify all sorts of deficiencies in the home that the purchaser may not see during their visits. If radon is an issue, the inspection could save your life.
If you are considering purchasing real estate, and you would like advice on radon gas or any other issue, please contact the Chriswell Law Offices and set up a consultation today.
Many of my family law clients ask me “How much can I expect to pay in child support?” or they ask “How much will Domestic Relations order my ex to pay in child support?” The answer to this question is not a simple one.
In Pennsylvania, child support orders issued by Domestic Relations are based on a somewhat complicated formula that is based on several factors, including:
The PA Department of Health & Human Services provides a child support estimator at https://www.humanservices.state.pa.us/csws/. This estimator is not a substitute for speaking with an attorney and possibly having representation at a hearing or conference. The estimator, and the formula it is based on, do not take into account any “deviations”that a parent may be entitled to, particularly if they have a disability or large, fixed expenses that prevent them from paying the “guideline” amount. Also, the parties are free to negotiate amounts different from the support guidelines.
At a child support conference or hearing, it is vital to present evidence of any and all of the above factors and possible deviations. An attorney can help. If you have a question about child support, contact my office.
Do you wake up early Monday mornings with burning legal questions? If so, tune in to my radio segment entitled “Marshall Law” on the radio at WDAD 1450-AM. The show airs every other Monday morning at 7:45 during the “Indiana in the Morning” show with host Todd Marino. For each live show, Todd and I spend a few minutes discussing a different legal topic. Past shows have centered on estate planning, probate, residential real estate transactions, and child custody.
This week I talked a little bit about domestic violence and Protection from Abuse orders. We discussed the requirements for filing a PFA in Pennsylvania, how it can protect you, and what the consequences are for both the victim and the alleged abuser in the event a PFA Order is entered. We also touched on the fact that only relatives; spouses; and ‘intimate partners’ may file PFA petitions against one another – PFAs generally don’t apply between neighbors, strangers, or acquaintances. If you follow my Blawg, you will remember that I gave a written overview of PFA’s a while back, and you can find it here.
The next installment of Marshall Law will be Monday, December 1st. If you have an idea for a topic, contact me and I will try to cover it. Of course, we take on-air questions during the show, so feel free to call.
When can you file for emergency custody? Consider the following circumstances:
What do you do?
These are just some of the situations that might justify filing a Petition for Special Relief with the Court of Common Pleas in your county. Pennsylvania law provides that a judge may enter temporary custody order (or temporarily modify an existing order) at any time. It is even possible to obtain such an order if the other party fails to respond or show up for a hearing (called an ex parte proceeding). To obtain this type of an emergency custody order, you should have your attorney file a Petition for Special Relief setting forth the facts that make the emergency order necessary.
Once a petition is filed, a Common Pleas judge will decide whether the facts justify an emergency order, and whether there will be a hearing on the matter. Depending on the severity of the situation, a judge may even hold a hearing or issue an order within hours or days.
If you think you need an emergency custody order, Contact Attorney Marshall Chriswell to discuss your case today.
In Pennsylvania child custody cases, the parties are generally required to attend a mediation session prior to obtaining a hearing before a common pleas judge. If you have been ordered to attend custody mediation, you likely have questions about its purpose and what to expect. Many of my clients have these same questions, so I thought it would be helpful to put together a list of common “FAQ’s” for parties preparing for child custody mediation. Remember, situations vary widely, and for specific questions about your case, you should contact an attorney.
Why do I have to attend mediation?
Pennsylvania law requires parties to attend child custody mediation with the hopes that they can work out a custody agreement between themselves rather than proceeding to a full custody hearing.
Do I have to agree to a custody order at mediation?
Absolutely not. Sometimes it is in the best interest of your child to reach an agreement at mediation, and sometimes it is better to proceed to a custody hearing. This depends on the facts of your case and the position of the other party. The mediator may encourage you to enter into an agreement, and that is her/his job, but the mediator cannot force you to agree to anything. You always have the right to move forward with a hearing if the agreement being offered is unacceptable to you.
What are the benefits of reaching an agreement at mediation?
One big benefit is risk management. If you choose to proceed to a custody hearing before a judge, you are taking the decision making out of your hands and placing it with the judge. The judge could (and likely will) enter an order that neither party is happy with. By agreeing to a custody order at mediation, you can maintain some control over all aspects of the custody order, including the custody schedule, who has primary custody, who has legal custody, etc. etc.
Another benefit of reaching an agreement at mediation is cost management. A custody hearing often requires the services of an attorney to properly present your case. Custody hearings can last a few hours or multiple days. An attorney will have to bill you for this time, plus time spent preparing for the hearing. It can be very expensive.
How should I prepare for mediation?
Some counties require the parties to fill out a “mediation questionnaire” which will force you to think through many of the important issues related to your child custody case. Even if your county does not require this, it is very helpful if you sit down and think about (a) the custody timeline – who has had custody of the child since their birth, where, and for how long; (b) a proposed schedule of custody – what would meet your goals and work best for the child; (c) the factors that make your home a better/safer place for the child to spend the majority of his/her time in comparison with the opposing party.
These documents are not necessarily something you would provide to the mediator (unless he/she asks), but they would help guide you or your attorney through the mediation process.
How should I act at mediation?
This is a biggie. You should conduct yourself professionally at all times. You want to show the mediator that you are reasonable and flexible. Keep in mind that the mediator is required to write a report of what happened at mediation and provide it to the judge. You should acknowledge the other parent’s strengths. Most of all you need to convey that your main concern is what is in the best interest of the child.
Finally, you should not bring outside issues into the mediation. It is only about custody – not property settlement, child support, or personal issues that don’t directly affect the child’s well being.
If you are scheduled for a child custody mediation, these tips should help you out. Remember, it is almost always best to have an attorney represent you. If you would like to discuss this or any other family law issue you are facing, please feel free to contact me for a consultation.
By: Marshall Chriswell, a Pennsylvania child custody attorney
As a lawyer handling family law issues in Pennsylvania, divorced or separated parents often ask me if they need a child custody order. My answer is often yes, and here is why:
Usually when parents separate, there is no custody order in place. In some rare cases, the parents are friendly enough to work out an informal (unwritten) custody arrangement with no problems. More often though, a custody order will be necessary. The worst time to obtain a custody order is after a problem arises.
What are the benefits of having a custody order?
Compliance with child custody orders is mandatory. However, it is important to understand that custody orders are not permanent. Either party can ask the court to modify the order at any time, particularly if circumstances change or a different arrangement is in the best interest of the child.
Child custody orders can be flexible, and they can be tailored to the agreement of the parties. Even if the parents agree on a custody arrangement, it is advisable to have a custody order in place in case a dispute arises.
I know, I know…these days there is a month for everything, right? In fact, August is National Immunization Month, National Panini Month, National Breastfeeding Month, National Water Quality Month, National Eye Exam Month, and on and on. While all of these are important in their own way, I encourage you to actually take some time this month to think about the state of your estate plan.
Did you know that most people don’t have a will? Are you one of them? Many of my clients have put off the decision to make a will for months or even years by the time that they call my office for a consultation. You know it’s important. Why wait?
To commemorate National Make a Will Month, I will be offering a 10% discount for any client who calls to make an estate planning consultation on or before August 31, 2013. Click here for my Contact Information.
I previously explained why PA Residents need a will. The question is, what will happen to your cash, investments, real estate, and tangible personal property when you are no longer here? More importantly for parents, what will happen to you minor children? If you don’t create a will, then your affairs will be handled according to Pennsylvania law – not your wishes. Unfortunately, that is often not a good outcome.
By having a will drafted by a professional, you can ensure that your assets pass to individuals or charitable organizations of your choosing. You can also select guardians for your minor children, and set up trusts in the event that your heirs are too young or otherwise incapable of handling their inheritance at the time of your death. Maybe most important of all, a valid Pennsylvania will can eliminate awkward, complicated, and expensive legal battles over issues like child custody and probate. The certainty that comes with a valid will is a priceless gift that you can give your family now.
To commemorate National Make a Will Month, I will be offering a 10% discount for any client who calls to make an estate planning consultation on or before August 31, 2013. Click here for my Contact Information.
All contractors performing home improvements in Pennsylvania are subject to the Home Improvement Consumer Protection Act, 73 P.S. 517-1, et seq. Many contractors are not aware of this law, which carries strict requirements and harsh consequences for those who don’t comply.
As a lawyer practicing business law, many of my clients are self-employed. Plumbers, electricians, masons, carpenters, kitchen/bath installers, and even handymen are all considered “home improvement contractors” under the Act.
Contractors must comply with the Act when they perform any of the following services for more than $500.00:
(i) Repair, replacement, remodeling, demolition, removal, renovation, installation, alteration, conversion, modernization, improvement, rehabilitation or sandblasting.
(ii) Construction, replacement, installation or improvement of driveways, swimming pools, pool houses, porches, garages, roofs, siding, insulation, solar energy
(iii) Without regard to affixation, the installation of central heating, air conditioning, storm windows or awnings.
As you can see, the definition of a “Home Improvement” under the Act is very broad. Further, there are very specific requirements that every contractor must follow.
First, all home improvement contractors must register with the office of the Pennsylvania Attorney General. The registration process is relatively simple, and can be completed online (for a small fee) at the Attorney General’s website. Registrants also must prove that they carry at least $50,000.00 in liability insurance to protect their customers.
Once a contractor is registered, they will be provided with a registration number that must be prominently displayed on all advertisements (including those appearing on vehicles), and written contracts.
Second, the Act requires contractors to use written contracts for all home improvement services. If contractors do work without a written contract, they may not be able to collect payment from a non-paying customer. All contracts must include very specific terms, including:
Finally, the Act prohibits specific acts of misrepresentation by a contractor, and subjects violators to criminal prosecution, up to and including felony charges.
The Act imposes various other restrictions on home improvement contractors. Violations of the Act can result in not only the inability to collect from a non-paying customer, but also hefty fines for the contractor.
Anyone providing home improvement services should consult an attorney regarding their obligations under Pennsylvania law.
By: Marshall Chriswell
This week, the Pennsylvania Supreme Court issued an interesting decision about shale gas that has many Western Pennsylvania landowners breathing a sigh of relief.
Nearly everyone in Western Pennsylvania has been affected by, or at least heard about, shale gas. The Marcellus shale formation (and increasingly the Utica formation) have brought both economic activity and incredible amounts of controversy, to our region.
Shale gas has also caused plenty of activity in the Pennsylvania courts. Why would that be? Especially when natural gas has been extracted from Western PA wells for over a century? The answer is obvious: gas rights have become exponentially more valuable with the advent of shale gas, and now folks are disputing who actually owns those rights.
A little background: When someone sells or transfers a piece of property, but wants to retain the gas, oil, or mineral rights (i.e. the right to royalties) for themselves, their attorney makes sure that the deed specifically states that the seller is retaining those rights. If it’s gas rights, the deed says the seller is reserving the “gas” or “natural gas.” If it’s oil rights, the deed says the seller is reserving “oil,” and if the seller is retaining coal, rock, or any metallic substance, the deed says the seller is reserving “minerals.”
In this most recent case, Butler v. Powers, the deed in question was Mr. Powers’ deed from way back in 1881. That deed only said that Mr. Powers owned the “minerals and petroleum oils.” Then, in 2009, Mr. Powers’ heirs appeared in court and argued that they should own the shale gas rights, too. Why? Because shale gas is actually located inside the shale, and shale is a mineral. Essentially, they argued that because they owned the shale, they also own the shale gas.
This was a very clever argument, and several courts heard the case, and disagreed on the right answer. Finally, this week, the Supreme Court settled the argument once and for all. The Court did the sensible thing. The Justices unanimously decided not to overturn 100+ years of property law. So, in order to retain gas rights, a deed still must specifically state that the owner is reserving the “gas” or “natural gas.”
Had the Supreme Court agreed with Mr. Powers’ family, and reversed the law, it would have thrown many deeds into question, causing big problems for landowners, and possibly stalled shale gas development in Pennsylvania.
This case also illustrates how important it is that deeds are always drafted properly, and with the assistance of an attorney.
Do you have a real estate or natural gas issue? I would be happy to help. Call to schedule a consultation today.
By: Marshall Chriswell
Estate planning is important for everyone, but particularly for unmarried couples.
Proper planning can provide effective and efficient disposition of assets consistent with one’s intentions, tax savings and, of course, peace of mind. A good estate plan in Pennsylvania may include a will (and possibly a memorandum distributing tangible personal property), powers of attorney (financial and medical), one or more trusts, investment planning, etc.
Often, I am consulted by married couples who want to make sure that their spouses, and ultimately their children and grandchildren obtain the assets that the clients have worked so hard to accumulate. Planning for married couples is fairly straightforward. Pennsylvania has statutes which specifically protect a surviving spouse’s beneficiary rights to real property, probate estates, etc.
What about unmarried couples (some prefer the term “domestic partners”)? The short answer is that Pennsylvania provides no protection, as a matter of statutory law, for a surviving partner. Of course, some unmarried couples have been together for years or decades, and even have children together. But without proper estate planning, a surviving partner may be left with nothing. Here are five estate-planning tools for unmarried couples to consider:
1. A Valid Pennsylvania Will
In Pennsylvania, if a person does not have a will the estate assets will legally pass to his/her “heirs.” Heirs include a person’s spouse, children, parents, aunts, uncles, and even cousins. A person’s partner is not an heir. The only way to ensure that the assets of one partner are passed to the other is to have a valid Pennsylvania will drafted by an attorney.
A properly drafted will should also include guardianship provisions for minor children. Without such provisions, a court will have to decide who will obtain custody of the children upon the death of one partner. If the child is the biological or adopted child of both partners, then this is usually not a problem. However, if this is not the case, and if the deceased partner’s intentions are not known, a court may award custody to a grandparent, aunt, uncle, sibling, or other person.
2. Powers of Attorney
When a person becomes physically or mentally unable to make decisions for themselves, their finances, or their healthcare, then a person must be appointed to make decisions for them. If the injured/ill person has a financial power of attorney and a healthcare power of attorney, these documents will spell out who should make those decisions.
If a person does not have power of attorney documents, often a court must appoint a “guardian” who will control the person’s finances and make healthcare decisions on their behalf. If the injured/ill person is married, a spouse is the first logical choice for appointment by the court. However, if the couple is unmarried, the court is more likely to appoint a parent, child, sibling, or other blood relative to be the decision maker. You can see how important these documents can be.
3. Deeds to Real Property
When married couples purchase property in joint names, Pennsylvania law recognizes it as “entireties” property, meaning that if one spouse passes away, the other spouse automatically inherits the deceased spouse’s entire interest in the property. However, there is no such protection for unmarried couples. Unmarried couples must be sure that their deed is drafted properly, with ownership being as “joint tenants with the right of survivorship” if they want to ensure that the property passes between partners at death.
4. Beneficiary Designations
Unmarried couples should be particularly careful to make sure the beneficiary designations on life insurance policies and investments (IRA, 401k, mutual funds, etc) are accurate and up to date.
Trust can provide additional protection and flexible planning alternatives to ensure assets are safely passed on to a surviving partner and/or the next generation. If you have significant assets, or you want to ensure that assets are preserved for children and grandchildren, consider asking an attorney about setting up a trust.
Estate planning is a necessity for everyone, but particularly for unmarried couples. Without proper planning, a surviving partner can be left without a home, and may lose other real estate, personal property or cash that both partners worked hard to accumulate.
To discuss planning options, Contact Marshall Chriswell to schedule a consultation.
When drafting wills and other estate planning documents for clients, we always discuss tangible personal property. What is tangible personal property? It’s all of your “stuff” – Cars, furniture, appliances, antiques, wedding bands, tools, equipment, dishes, and knicknacks, just to name a few. Many clients want to ensure that certain items are passed onto particular individuals, often for sentimental reasons. Many have kept a list, or even labeled those items discreetly throughout their home.
The question is, how can the client make sure these items end up in the right hands after they are gone? Does all that “stuff” have to go into the will? The answer is to create a Memorandum Distributing Tangible Personal Property along with your will. This way, you can make these decisions in the comfort of your own home, even years after your will has been executed.
Here are the basics:
Lastly, and most importantly, using a Memorandum Distributing Tangible Personal Property is not a substitute for updating your will and other estate planning documents. You should review your estate plan every year, or anytime you have a life-changing event (a birth, death, marriage, divorce, major purchase, relocation, starting a business, significant change in net worth, or declining health) For more information about estate planning, see my Frequently Asked Questions on Wills and Estate Planning, or contact me.
When co-owners of real property in Pennsylvania cannot agree on the management or sale of the property, Pennsylvania law gives any owner the right to request a “partition” of the property.
What is a Partition?
A Partition is a type of lawsuit where a judge, or a court appointed master will hear evidence and determine whether the property is to be divided or sold. The procedure for partition actions are found at Pa.R.C.P. 1551 et seq. To initiate a partition action in Pennsylvania, a co-owner must file a partition complaint at the Court of Common Pleas. The Complaint will set forth the property description, the names and addresses of the co-owners, and their interest in the property. The Complaint will often include claims for damages, such as taxes, mortgage payments, maintenance, or other property-related expenses.
Once the complaint is filed and served, the judge can issue an order directing partition of the property. After the order is issued, the judge will schedule a preliminary conference, during which the co-owners can set forth their positions, and try to reach an agreement regarding the property. If they cannot agree, then the judge will either continue to handle the matter his/herself, or appoint a partition “master’ (usually a local attorney) to handle the case. The judge or partition master will do some or all of the following: obtain an appraisal of the property, view the property personally, conduct hearings, and attempt to settle the matter.
How can Property be Divided?
The first question the judge or master will answer is whether the property can be physically divided into “purparts”. The word “partition” itself sounds like, and can be, a physical division of the property. However, many parcels are not amenable to being physically split up among the owners. For example, a small lot with a house could probably not effectively be divided and still retain its value. In these types of cases, the court will order a sale of the property rather than physical division.
Where the subject property is a larger tract of land, a court may issue an order to divide the property, giving each owner a physical piece of the property. The purparts might be of equal acreage, but if one part of the property contains improvements or valuable physical resources (timber, minerals, etc.), then the acreage can be divided in such a way that the new parcels are different sizes, but still equal in value.
Sometimes, even large tracts of land cannot be divided in a way that each owner obtains an equal share. In these cases, the court may order the land to be physically divided, and order the owner who obtains a more valuable piece to pay his co-owners the difference in value. This payment is called “owelty.” If even this solution is not workable, then the court will order a sale of the property.
Partition Sale – Private or Public
Once a judge or master has determined that a property cannot be adequately divided physically, the Court will order a forced sale of the property. First, the court must consider a “private sale” where only the current owners have the opportunity to bid on the property. If no current owner wishes to bid, then the court will order a public sale where any interested person may attend and bid.
PA law provides for the partition of real estate where owners can’t agree on how the property should be managed, or whether it should be sold. The partition process itself can be time-consuming and expensive. The costs of a partition action will reduce the amount realized by each owner; therefore, it is always best to reach an amicable settlement without court intervention if possible.
To discuss a partition, or other real estate law issues in Pennsylvania, contact the Chriswell Law Offices.
In Pennsylvania, a victim domestic violence can file for a Protection From Abuse (PFA) Order. A PFA is also known as a “stay away” order or a “restraining order.” It prohibits an abuser (the Defendant) from having any contact with the person who files the petition (the Plaintiff). The order will prohibit any type of contact by the Defendant, including letters, phone calls, and electronic communication.
A court can issue a PFA order if the Plaintiff was a victim of actual physical violence, or if the Defendant attempted to cause bodily injury, or if the Plaintiff was put in reasonable fear of imminent bodily injury by the Defendant (See 23 Pa.C.S. 6102).
A Protection From Abuse Petition can be filed against the Plaintiff’s spouse, a current or former intimate partner, or any family or household member. The Plaintiff may file a PFA petition for his/herself, or on behalf of another family member, including minor children.
Usually a court will issue a Temporary PFA Order, which will last until a hearing can be held. After the hearing, the court may issue a Final PFA Order, which will be in effect for up to three years.
A Final PFA Order will appear on the Defendants permanent public record as a “finding of abuse.” The entry of a temporary PFA Order can be expunged if a Final PFA Order is never entered.
In addition to prohibiting contact, a Protection From Abuse order can also include one or more of the following provisions:
To file for a PFA, or if a PFA has been filed against you, Contact The Chriswell Law Offices for representation.
By: Marshall Chriswell
This time of year in Pennsylvania, outdoor sportsmen clean their rifles, don their blaze orange and camouflage winter gear, and head into the woods. Deer hunting is a time-honored tradition in the Commonwealth; it is a great opportunity for bonding with family and friends, and of course stocking up on some tasty venison to enjoy for the months to come.
However, hunters should be aware that Pennsylvania has enacted important statutes and regulations that, if not properly followed, can result in civil or criminal sanctions, including fines or loss of hunting privileges.
This week, in honor of Pennsylvania (firearm) deer hunting season, I will shed some light on Pennsylvania hunting laws. I won’t mention every single statute and regulation, but my posts should give you a good idea of the laws of the land.
When planning your hunt, one of the first things you must do is determine where you are going to hunt. One of the most common legal issues to arise during hunting season is that of property rights.
Contrary to the belief of some, hunting on private property without permission is trespassing – even if the property is unoccupied, and not posted or fenced. In Pennsylvania, you may not hunt private property without the permission of the landowner. Written permission is not required, but it is advisable.
If you hunt on private property without any knowledge as to whether hunting is permitted there, you may not have committed a crime, but the landowner may sue you for trespass and recover money for any damage that you caused to his land. They may also call the game commission or the police and have you removed. Further, the landowner will not be responsible if a trespasser is injured by a dangerous condition on his land.
However, if the owner of a property does not permit hunting on his/her land, and you still hunt despite being aware of the owner’s wishes (by posting, fencing, or other notification from the owner), you may also be charged criminally. If you are convicted, you will be fined, and the offense of “criminal trespass” will be a part of your public record for employers, banks, and everyone else to see. If you are found guilty of other violations of Pennsylvania hunting laws in conjunction with criminal trespass, the penalties can be more stringent, and you may lose your hunting privileges for up to fifteen years.
The bottom line is that private property is just that: private. You should always ask permission from a landowner before hunting their property. Many landowners are happy to grant you permission, but if you trespass, the landowner may decide to close his property to hunters altogether. Then, you will lose a promising hunting spot, in addition to risking criminal charges.
I am routinely approached by clients who have put off making a will, often for many years. I understand that confronting the idea of one’s own death is not an easy thing to do, but the writing of a valid Pennsylvania will is extraordinarily important, for several reasons:
1. A Valid Pennsylvania Will is Enforceable after your Death
This may sound obvious, but it is extremely important from a legal perspective. A valid Pennsylvania will is a legal document that states your post-death intentions with regard to the disposition of your property, the guardianship of your minor children, and the handling of your estate. Very few other documents or agreements are enforceable after death, and a well-written will is very difficult for anyone to contest. The writing of a will offers you the opportunity to gain certainty and peace of mind over what will happen after you are gone.
2. Without a Will, Pennsylvania Law Decides Who Gets What
If you die without a will, the disposition of your property will be decided by Pennsylvania Law, under the Pennsylvania Intestacy Statute, 20 Pa.C.S.A. § 2104, et seq. Many people assume that, without a will, the law will give everything to their spouse, or their children – this is not always the case. The law provides for inheritance by parents, grandparents, brothers and sisters, aunts and uncles, or even cousins. While spouses and children will always receive something under this law, it is often not the amount or the percentage that the deceased person intended. Further, if you have a domestic partner (non-spouse), or close friend who you would like to have something when you pass away, the law will leave them out of the estate unless you have a valid will naming them as a beneficiary.
3. Without a Will, Pennsylvania Law Decides Who Will Care for your Children
If you die without a will, and you have minor children, who will care for them? The answer is that the court will decide. One or more persons will file a petition to be appointed guardian of the child(ren), and the court will conduct a hearing to determine who is best suited to care for them. These proceedings often lead to disputes among family members, and can certainly be difficult for the child. If you prepare a Pennsylvania Will, you can appoint a guardian of your minor children. The knowledge that your children will be cared for by a loved one will provide you with invaluable peace of mind.
4. A Will Can Prevent Family Disputes
We have all witnessed it. The passing of a loved one often leads to unfortunate family squabbles. The majority of these disagreements can be stemmed or eliminated by the drafting of a well-written will. This is because the will provides your family with tangible evidence of your intentions, and therefore eliminates the basis for many disagreements.
5. A Will Allows You to Appoint an Executor
One of the most important reasons to make a will is that you can appoint a trusted, responsible person to handle your affairs after you are gone. Without a will, the court will choose a family member (or two) or other beneficiary of your estate to manage the estate. This leads to more family squabbles, and sometimes the person chosen is not the best person for the job. Why? Being an executor (or executrix, for a female) is a difficult job. They will have to manage the estate finances and make sure that the distributions of property are made to the correct beneficiaries at the right time. An attorney will help with this, but it is still a complex process that many people are not equipped to handle, especially in a time of grief. With a valid Pennsylvania Will, you can name a person who you know will be able to handle the minutiae of the estate, and who will be diplomatic enough so as not to cause arguments among your friends and relatives.
6. A Will Can Avoid Death Tax Liability
Another reason that many people create a will is to avoid tax liability. If your estate is subject to the Federal Estate Tax, then a valid Pennsylvania will, with the appropriate trust provisions, can offer a significant tax savings, leaving you with more of your hard earned assets to pass on to the next generation.
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By: Marshall Chriswell
Until recently, there was not a good answer to this question. However, on September 5, 2012, that changed. That was the effective date of Act 129, which amends the Landlord-Tenant Act of 1951, setting forth new rules regarding the abandoned property of tenants. The Act attempts to provide bright-line rules when dealing with abandoned property and to strike a balance between the rights of both landlords and tenants.
The New Rules: Under the new law, tenants are required to remove their personal property upon relinquishing possession of their rental unit. For purposes of the new law, a tenant will be deemed to have relinquished possession upon the occurrence of one of the following:
Within 10 days of relinquishing possession, the tenant must contact the landlord and state whether or not he/she intends to retrieve their property. If the tenant does not contact the landlord within 10 days, the landlord may, at his/her discretion, dispose of the property. If the tenant does contact the landlord within 10 days and state an intention to retrieve the property, then the landlord is required to hold the property for 30 days, at a site of their choosing (within reasonable proximity to the rental unit).
Notice to Tenants Required: Landlords are required to notify tenants of their rights under this new law. If the landlords fail to provide notice, then the “10 day clock” will not start to tick. The type of notice required varies according to the circumstances of the case.
Removal & Storage Costs: If the tenant retrieves his/her property within the 10 day window, the landlord may not recover removal or storage costs from the tenant. If the tenant does not pick up the property within the 10 day window, then he/she becomes liable for costs of removal and storage. The landlord may recover these costs by selling the property after the 30 day storage period has expired, and the balance of the sale proceeds must be returned to the tenant via certified mail.
Takeaway: These rules are somewhat complex, but it appears the legislature has done a good job of balancing the rights of the parties. It is clear that landlords should have Act 129 provisions in their leases, and should have a pre-drafted Act 129 notice to send whenever a tenant vacates the property for any reason.
A special notice to my landlord/tenant clients: if I have not already contacted you regarding the new law, you should expect to receive an updated lease addendum and an “Act 129 Notice” in the mail from my office shortly. You should begin using them immediately.
By: Marshall Chriswell
A Power of Attorney is a written document that gives one person authorization to act on behalf of another. I regularly recommend that my estate planning clients sign Powers of Attorney (including a Financial Power of Attorney and a Healthcare Power of Attorney) as an integral part of their estate plan.
During my clients’ free initial consultation, before drafting their Power of Attorney documents, I have a detailed conversation regarding their wishes. Although the advice I give each person is different, many clients have similar questions and misconceptions about Powers of Attorney. Here are 5 quick facts everyone should know about Powers of Attorney:
1. Powers of Attorney are “Powerful” documents.
A Power of Attorney appoints a trusted person (your agent) to make decisions on your behalf in the event that you are unable to make those decisions on your own. A Power of Attorney typically gives your agent the authorization to manage your bank accounts, make deposits and withdrawals, write checks, sell your assets (including real estate and business interests), manage investments, and other broad financial powers. A Healthcare Power of Attorney gives your agent the ability to make decisions regarding your healthcare, including what medication or other treatments you receive, where you receive treatment, whether to perform surgery, when to hire or fire doctors and nurses, as well as crucial end-of life decisions.
Having Powers of Attorney as part of your estate plan will give you great peace of mind knowing that the right person will be handling your affairs if necessary, but it is very important that you select someone who is trustworthy. Powers of Attorney are important planning documents, but in the wrong hands they can be an instrument of fraud and abuse. You should appoint an agent who you know and trust, and who shares your values.
2. Your attorney can include safeguards in your Power of Attorney to protect you from fraud.
As mentioned above, Powers of Attorney give your agent broad powers to handle your affairs. This can sometimes lead to fraud and abuse, but a good estate planning attorney can limit these risks by:
3. You are not too young to sign a Power of Attorney
We all know that life is unpredictable. Many of us will become ill or injured before we reach an advanced age. Sometimes that illness or injury will be temporary, and sometimes it will be long-term. A good estate planning attorney attempts to prepare for every contingency. This is why I recommend that every adult should have Powers of Attorney documents.
Imagine that you are hurt in an accident tomorrow, and are unable to handle your affairs for several months. How would you ensure that you bills were paid and other financial affairs managed while you recover? A Power of Attorney document can make these tasks much easier for your spouse or other appointed agent.
Again, imagine you are in an accident. Your doctors are performing surgery to repair a broken bone, and they discover a large tumor. If you have signed a medical power of attorney, your agent can instruct the doctors to remove the tumor and eliminate the need for future surgeries.
These situations can and do happen. You are not too young to establish a responsible estate plan.
4. Powers of Attorney can help eliminate family disputes
Advance planning will give you peace of mind. Not just because you will know for certain how your affairs will be handled, but also because it can eliminate family disputes. This is particularly true with Powers of Attorney.
Without these documents your loved ones will have to decide who gets to make decisions about your financial and medical affairs while you are incapacitated. Even if all of your family members get along well, this can be very difficult. Often, a court will have to get involved to determine awho will be your legal “guardian” to handle these matters. This proceeding can be expensive and emotionally charged. You can avoid such a situation by consulting with an attorney, and stating your wishes in a written Power of Attorney long before it is needed.
5. To sign a Power of Attorney, the signer must have mental capacity
Under Pennsylvania law, a person signing a Power of Attorney must have the capacity to understand his/her actions for the document to be valid. This is another good reason to start planning early, while you are still healthy. If you or a loved one is beginning to experience symptoms of a long-term illness (such as Alzheimer’s or dementia), please see an attorney as soon as possible.
Powers of Attorney are extremely important planning documents. They can provide you with certainty and peace of mind knowing that your affairs are being handled by someone you know and trust. However, these documents can be abused, so you want to contact a competent estate planning attorney to draft them for you.
As a lawyer, I attend legal conferences and participate in telephone and online discussions with colleagues from all over the country. One frequent topic of conversation is the serious problems that can occur when clients purchase legal documents from LegalZoom or another legal services website. Many times, these clients end up spending two or three times the amount of time and money to fix problems arising from these generic legal services. I think it is important to address this growing problem.
With the rise of the internet has come a proliferation of online services. In our modern society, a person can manage bank accounts, make investments, file taxes, shop, and consume various forms of entertainment without ever leaving home. Inevitably, some lawyers have gotten in on the game, and created websites, such as LegalZoom (founded by Robert Shapiro, former defense attorney for OJ Simpson), which provide users with legal forms for various situations, such as starting a business or creating a will. On the surface, these services appear to save money and time by bypassing the use of a real lawyer. Upon further consideration, though, there are many good reasons why you should consult a real, live lawyer for your legal needs.
Here are 5 good reasons why Legal Zoom and similar do-it-yourself sites are not a good idea:
1. The products are not customized for your legal needs.
Do you trust WebMD as a replacement for your doctor? Of course not. Why not? Because, unlike a website, your doctor does not examine your symptoms in a vacuum. Instead, your doctor looks at your symptoms as part of your overall health, then makes an informed diagnosis and recommends effective treatment based on a variety of factors. The role of a lawyer is very similar.
At your consultation, your lawyer will ask questions designed to assess your legal “symptoms”, and will then recommend a solution that is tailored to your particular needs, as well as being within the parameters of your state and local laws. This is where LegalZoom falls short. They offer generic solutions. Only a real, live attorney conducting an in-person consultation can provide the personal service that is crucial to effectively solving your legal problem.
2. The forms may be invalid.
When ordering forms online, there is no guarantee that they will actually work. In fact, the websites display disclaimers that the forms you order are not guaranteed for any particular purpose. Sure, you may be able to obtain a refund within 60 days, but will that be helpful five years down the road when your family is dealing with a contested will or an invalid power of attorney? Or when your business is involved in litigation that could have been avoided by correctly drafted formation documents?
For an example, read this article about a dying man who created an estate plan on LegalZoom. When the documents proved to be invalid, LegalZoom refused to fix the problems. He unfortunately passed away before the issue could be resolved and his family filed a lawsuit (LegalZoom settled out of court).
Also, different states have different rules for how to make your documents valid. Does your will need two witnesses? Should a document be notarized? How exactly do LLC members approve the company’s operating agreement? When it comes to legally “breathing life” into your generic online documents, you’re on your own.
When a real, live attorney handles your situation, she/he puts their professional reputation on the line. You can rest assured that they will make sure your documents are valid, and if a problem arises later, that attorney will be there to work with you, your family, or your business to resolve your issues.
3. Online legal services are actually slower than an attorney.
The turn-around time for legal documents on LegalZoom can be up to a month, unless you pay expensive expediting fees. An attorney can often prepare documents in a matter of days, particularly if you let her/him know that you are in a rush.
4. Pricing problems
Online legal services websites use one-size-fits-all pricing for their products, no matter what your situation. A good attorney will work with his/her clients, and arrive at a price that is fair to the client. A lawyer will understand that, for example, a small start-up business may not have the same resources (or the same needs) as an larger, established client.
Another pricing problem is that the advertised prices for LegalZoom and similar sites are rarely the prices you will actually pay. The experience is not unlike buying a car or a computer: all of the “extras” add up fast. Often, these “extras” are things that your attorney would have done for little or no cost.
5. Lack of an ongoing relationship
What happens when you have a question about the documents you purchased online? You call customer service and speak to a representative who is probably not an attorney, has no responsibility to you as a client, and may or may not give you the correct answer.
What happens when you have a question about documents drafted by your lawyer? You call his/her office and speak to the lawyer, maybe make an appointment, or even just drop by. Your lawyer is familiar with your issues and will provide ongoing support. Further, you lawyer will often contact you if there is a change in the law or your documents need to be updated for some reason.
If you are thinking about using LegalZoom or a similar online legal service, I hope this post makes you think twice. If you have already used LegalZoom, I recommend that you contact an attorney to review your documents, to ensure they are valid and up to date.
Hello everyone, my name is Marshall Chriswell and I am an attorney practicing in Western Pennsylvania. I maintain offices in Indiana and Clearfield, but I am available to meet with clients throughout Western Pennsylvania, including in Armstrong, Westmoreland, Cambria, and Jefferson counties. The majority of my practice consists of Estate Planning, Probate, Business Law, and Real Estate. I handle other matters as well, and I encourage you to contact me for a consultation if you have a legal problem.
A little about me: I was born and raised in Indiana, Pennsylvania, where I currently reside with my wife Amanda. After graduating from the Indiana University of Pennsylvania, I moved to Washington DC, where I worked with the well-respected boutique law firm of Kohn, Kohn, & Colapinto and attended law school. After experiencing life in our nation’s capital, Amanda and I are thrilled to be back in our hometown!
I hope that this blog will become an important resource for people who are seeking information about Pennsylvania law, particularly in the areas of business law, real estate, and estate planning. Please check back often for articles about established Pennsylvania law, and updates on new statutes, regulations, and case law that will affect us all.