Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

The rights of a grandparent for custody of a grandchild in Pennsylvania are set forth under the Custody and Grandparent Visitation Act. Generally, a grandparent can only be awarded custody if:

• their child (the parent of their grandchild) is deceased; or
• the parents of their grandchild are divorced or separated; or
• the grandchild has lived with (or been raised by) the grandparent for 12 months; or
• the grandchild is substantially at risk of abuse from the parents.

Death of Parent - If the parent of a child is deceased, the parents (or grandparents) of the deceased parent may be granted reasonable partial custody or visitation rights to the child if it is determined to be in the best interests of the child and would not interfere with the child’s relationship with the surviving parent.  

Separation or Divorce
If the parents of the child are divorced, divorcing, or separated for six months or more, a grandparent can receive reasonable partial custody or visitation rights to the child if it is determined to be in the best interests of the child and would not interfere with the child’s relationship with either parent.

Prior Residence - Partial Custody/Visitation - A grandparent can obtain partial custody or visitation of a grandchild if the child has:

• resided with the grandparent for 12 months or more and has been removed from the home by the parents; and
• partial custody or visitation of the child with the grandparent is in the best interest of the child; and
• the partial custody or visitation does not interfere with the parent-child relationship.

Parent-like Relationship or Substantial Risk of Abuse - Physical and Legal Custody - A grandparent can obtain temporary physical and legal custody of a grandchild if:

• it is in the best interest of the child not to be in the custody of either parent; and
• it is in the best interest of the child to be in the custody of the grandparent;    and
• the grandparent has genuine care and concern for the child; and
• the grandparent’s relationship with the child began with the consent of a parent of the child or pursuant to court order; and
• A) for 12 months or more the grandparent has assumed the role and responsibilities of the child’s parent; or B) the grandparent deems is necessary to assume the responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.

Absent the above, courts, in a custody dispute, generally consider a grandparent a third-party with no more rights to the custody of a child than a stranger.  As is typical in most custody disputes, success largely depends on the gathering and presentation of the specific facts of the case.   

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Clients often ask what happens in the Commonwealth of Pennsylvania if they die without a will. It is a common misconception that if you die in Pennsylvania without a will that everything will be left to the Commonwealth. Because of the statutory scheme that Pennsylvania currently has in place, it is a rare occurrence that anything will be left to the Commonwealth. 

The Commonwealth of Pennsylvania has developed what is commonly referred to as the laws of Intestate Succession. A person who dies without a will in Pennsylvania is said to have died “intestate.” The laws of Intestate Succession govern the disposition of a person’s property if he or she dies without a will, or if all of his or her property is not disbursed pursuant to a will. The Pennsylvania laws of Intestate Succession are designed to protect both the surviving spouse and children (if any). In addition to providing for spouses and children, the Pennsylvania laws of Intestate Succession may also provide for a decedent’s parents, siblings, aunts, uncles, and their children and grandchildren under certain conditions.

The starting point is if the spouse of the decedent survives the decedent, the amount of property that the decedent ultimately receives is dependent upon which other relatives survive the decedent.  So, who takes property and other assets pursuant to the Pennsylvania law of Intestate Succession?  The law can be summarized as follows:

No Surviving Children
If the decedent was survived by his or her spouse and had no surviving children or parents at the time of death, the surviving spouse receives the decedent’s entire estate. If the decedent was survived by his or her spouse and one or both parents, the surviving spouse is entitled to the first $30,000.00 of the estate, plus one-half of the remaining estate. The decedent’s parents’ share of the estate is discussed below.

Surviving Children 
If the decedent was survived by his or her spouse and had surviving children, all of whom were also the surviving spouse’s children, the surviving spouse receives the first $30,000.00 of the estate, plus one-half of the remaining estate. However, if the decedent was survived by his or her spouse, and at least one of the decedent’s surviving children were not also the surviving spouse’s child, the surviving spouse is limited to one-half of the estate. The reason that the surviving spouse receives less if one of the surviving children is not also a child of the surviving spouse is because the law presumes that a surviving spouse will care for his or her own children, but not necessarily those of the decedent.

No Surviving Spouse
What happens if the decedent is not survived by his or her spouse or the surviving spouse is not entitled to take everything in the estate? Pennsylvania’s Intestate Succession law provides as follows for the remaining share:

1. Children. First to the children of the decedent.

2.  Parents. If no children survive the decedent, the decedent’s parents share equally. If only one parent survives the decedent, the surviving parent takes the entire estate. If the decedent dies with a surviving spouse, the surviving parents are also entitled to take one-half of the estate remaining after the surviving spouse takes the initial $30,000.00 of the estate and one-half of the remaining estate.

3. Brother, Sister or their Children. If no children or parents survive the decedent, the estate will be distributed to the children of the decedent’s parents (the decedent’s siblings and their children).

4. Grandparents.  If no siblings survive the decedent, then the grandparents of the decedent shall receive, one-half to the paternal grandparents and one-half to the maternal grandparents and their children.  

5.  Uncles, Aunts, and Their Children and Grandchildren. If no grandparents survive the decedent, the estate is distributed to the decedent’s uncles, aunts, and their children and grandchildren.

6.  Commonwealth.  If no one mentioned above survives, then the estate goes to the Commonwealth of Pennsylvania.

It is important to note that will substitutes such as joint tenancy property, life insurance payable to specific persons, bank accounts with specific beneficiaries and the like will pass in accordance with their terms and will not be a part of the decedent’s estate to be distributed pursuant to the laws of Intestate Succession.

It goes without saying, that the best way to plan for the future and adequately provide for your loved ones is to have a will and other estate documents prepared by a trusted professional.

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As a Contractor, you may be aware that beginning on July 1, 2009, the Pennsylvania Home Improvement and Consumer Protection Act will become effective.  The Act gives the Bureau of Consumer Protection of the Office of the Attorney General broad regulatory powers over Home Improvement Contractors and ties a new class of acts titled “Home Improvement Fraud” and “Prohibited Acts” into the Pennsylvania Unfair Trade Practices and Consumer Protection Law.  The Home Improvement Act contains several traps for the unwary Contractor, and many common practices utilized by Contractors will soon become sufficient grounds for Owners to void a Home Improvement Contract, constitute “Prohibited Acts” leading to civil liability under the Consumer Protection Statute, or even constitute criminal “Home Improvement Fraud,” an offense punishable as a third degree felony.
 
The Act applies to contracts for “Home Improvement,” which is defined as any contracts exceeding $500 for such things as the repair, replacement, remodeling, demolition, removal, renovation, installation, alteration, conversion, construction (other than construction of a new home), and even certain kinds of landscaping of a building designed to be used as a private residence and/or land adjacent to a private residence. 
 
The Act requires all Contractors doing business in Pennsylvania to register with the Attorney General, and to provide personal information of the principals of the business and such other information as proof of the Contractor’s insurance.  Successful registration, accepted by the Attorney General will then become a “Home Improvement License,” and the Contractor is awarded a “Home Improvement Contractor Registration Number,” which must appear on all advertising and vehicles bearing advertising of the Contractor. 
 
These rather stringent requirements of the Act do have one significant upside, however, because a License is now effective for the entire Commonwealth, and preempts all local contractor licensing requirements.

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As if a typical divorce isn’t hard enough.  Imagine if the custody and support of 8 children were involved?  Such maybe the case with Jon and Kate Gosselin, stars (along with their 8 children) of The Learning Channel’s reality show “Jon & Kate plus 8.”  According to the latest rumors and tabloid reports, Jon has added one more person to the mix: a 23-year old blond co-ed.  Unless Jon has started moonlighting as a late-night French History tutor, it is safe to say their marriage, like many these days, is headed for trouble.  

But Jon & Kate’s situation is not like many.  From a legal perspective their divorce involves many issues not usually encountered in a “typical” divorce.

First of all, assuming the relationship fails because of Jon’s new interest - does this give Kate some advantage if they divorce?

Generally, under current law there is a strong emphasis for “No-Fault” divorce.  As such, marital misconduct (legal jargon for “affair”) has little to no bearing in a divorce.  However, when there is a general rule, there are exceptions to the rule.  One exception would arise if the party who had the affair (Jon) seeks alimony.  In such a case, Pennsylvania law (which would be applied in Jon & Kate’s case) provides that such misconduct is a factor for the court to consider in determining alimony.  In other words, if Jon is asking for alimony from Kate then a Judge could reduce any amount he would receive or deny Jon’s request altogether.  However, an exception to the exception could arise if Kate also was guilty of misconduct (the body guard?) or condoned or approved of Jon’s affair (rumors say the parties have such a clause in a contract).

In reality, marital misconduct, although a factor per Pennsylvania Law, generally carries little weight in the court when determining an alimony award.  With very few exceptions, marital misconduct only becomes a factor when the misconduct has financial consequences.  Usually this arises when one spouse decides to spend marital funds on their other interest, say by taking a trip to Maui.  In those cases the innocent spouse certainly has a claim to be reimbursed for such “wasted” marital funds.

But Jon’s conduct may have more severe consequences. How about the canceling of the television show?  This is a family business after all.  And not an insignificant one.  It is estimated that Jon & Kate earn $65,000 per episode.  In a 20-episode season that amounts to $1.3 million per year on the show alone.  Further, Jon & Kate reportedly charge $25,000 per speaking engagement.  A modest estimate of one engagement per week earns them another $1.3 million per year.  Add the substantial income they make selling autographed pictures at the engagements, plus the perks they receive for free ( Kate’s tummy-tuck, Jon’s hair plugs, a chef cooking for the family, free meals, toys, home renovations, clothes from sponsors, vacations to Hawaii, etc.) a conservative estimate puts them easily over $3 million per year. 

So if Jon’s conduct leads to the divorce which in turn leads to the cancellation of the show and the speaking engagements, which have been the sole sources of income for Jon, Kate and their 8 children, is Jon on the hook for that?

Under Pennsylvania law the court must equitably divide marital property without regard to marital misconduct in such percentages and in such a manner as the court deems just after considering all relevant factors.

At first glance it seems to appear that Jon may be off the hook completely. 

Pennsylvania law, however, requires the court to further consider the dissipation of each party in the depreciation of marital property.  A strong argument can be made that Jon’s actions led to the dissipation of the family business (which is marital property).  If so Kate should be walking away with the lion’s share of the estate.

But hey, I’m sure Jon can find a few more students to tutor. Keep your popcorn ready for this tabloid bonanza. Next issue: Who gets the kids?

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate's case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.

Follow me on Twitter @jdvisco.

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How do you know if you qualify for social security disability benefits?  If you believe that you can no longer work because of a medical condition(s), you may qualify for disability benefits. First, you must have been employed a sufficient amount of time, so that you have paid into social security, before you are able to qualify for benefits. If you do not meet the minimum amount of credits necessary, you cannot receive disability benefits regardless of your degree of disability. However, you may still qualify for other benefits, such as supplemental security income, which will be addressed in a future blog entry. 

In addition to this criteria, social security requires that you must be unable to do any substantial work because of your medical condition(s); and that your medical conditions must have lasted or be expected to last, at least 1 year. Although your doctor may have said that you are disabled and you may be receiving disability benefits through a private insurance contract or through your job, that does not mean that social security will decide that you are disabled. Social security disability laws are different from almost other programs. If you have questions about whether you should apply for social security disability benefits, you should contact an attorney specializing in this area of law for a consultation.

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Henry E. Van Blunk, Shareholder in Stark & Stark's Business & Corporate group, presented a seminar at the NAAIM Uncommon Knowledge­2009 Conference. The conference was held May 3-6, 2009 at the Westin Westminster in Denver, Colorado.

Mr. Van Blunk discussed best practices to implement when becoming involved in either an internal or external investment advisor succession or acquisition. Mr. Van Blunk explained the importance of thorough due diligence; purchase, shareholder and buy-sell agreements; and transactions including asset and stock sales, mergers and joint ventures. The seminar also included a discussion on the necessary role employment agreements, restrictive covenants and general succession planning play in executing mutually beneficial deals.  
 

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Last Saturday the Philadelphia Inquirer reported that a registered nurse was charged with stealing $22,000 from an elderly Alzheimer’s patient she was caring for.  The nurse was assisting the patient with the types of activities that Alzheimer’s typically need help with.  (You can read the full article online here.)

Unfortunately, crimes against the elderly by their care givers are increasing.  While typical cases involve neglect in nursing homes which often lead to pressure ulcers (commonly called bedsores), improper supervision which can lead to catastrophic falls or other examples of neglect, I am seeing more and more cases of patients being victimized by those who are paid to care for them.

For example, I am currently handling the case of an 91 year old  woman who was sexually assaulted by an employee of her nursing home.  Before the Alzheimer’s had caused full-blown dementia, my client actually complained to her aide, an employee of the facility,  that a groundskeeper had been kissing her.  Tragically, nothing was done.  One month prior to her death, a nurse walked into my client’s room and found the same groundskeeper sexually assaulting her.  At his criminal hearing the groundskeeper claimed that this 91 year old Alzheimer’s patient had consented to the assault!  When my client agreed to pay thousands of dollars a month to be cared for by this facility little did she know that her complaints would be ignored and the security at the home was woefully inadequate.

Should you have any questions about this case or other cases involving abuse or neglect of our elderly, feel free to contact me at 267.907.9600.

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A. Christopher Florio, Shareholder and Co-Chair of Stark & Stark's Community Associations group, presented a seminar entitled Legal Issues in Age Restricted Communities for the Community Associations Institute and Apartment Association of Greater Philadelphia's Expo. The Expo was held Wednesday, April 29, 2009 at the Valley Forge Convention Center. Mr. Florio's seminar discussed living in age restricted communities, and the legal issues that are peculiar to age restricted communities in Pennsylvania.

You can listen to Mr. Florio's full presentation here. (28.8 MB)

You can view a copy of Mr. Florio’s seminar materials online here. (PDF)

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Divorced or Divorcing
If you are divorced or in the process of a divorce, at any time prior to or subsequent to the entry of the divorce decree, you may resume any prior surname used by you.  This includes a maiden name, or any prior married name(s). You may do so by filing a Notice of Election to Resume Prior Name in the court of common pleas in the county in which the divorce action was filed or the decree of divorce was entered.  You must sign the form using your current name (to be known as), and former name, before a Notary Public.

Surviving Spouse
If you are a surviving spouse and you wish to resume any prior surname used by you at any time, you may do so by filing a written notice in the county in which you resides with a certificate of death for the decedent.

Children of Divorced Parents
It is important to be aware that simply because you are a divorcing or divorced parent it does not give you the right to change the names of any minor children.  If you wish to change a child’s name, you must petition the court and the court will evaluate all of the circumstances to determine if the change is in the minor child’s best interest.  

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In the first installment of my blog series focused on automobile insurance, we discussed the coverage in your policy which is referred to as “Bodily Injury” or “Liability” coverage. In this installment we will examine “Uninsured Motorist” coverage.
        
When you purchase uninsured motorist coverage you are purchasing coverage for you, and any residents in your household who are also relatives. This coverage also applies to any passengers who are in your vehicle at the time of an accident.  Uninsured motorist coverage is purchased to protect you if you are in an accident with someone who does not have the liability insurance needed to cover the injuries you may suffer as a result of an accident.  If the person responsible for the accident has no insurance, your insurance company will pay you what you would have been entitled to collect from the other responsible driver had they had liability insurance.  With uninsured motorist coverage, you will be able to collect up to the amount of coverage you have purchased.
 

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Business owners, both large and small, often put their blood, sweat, and (sometimes) tears into making their business as successful as possible. Often times this requires extremely long hours and six, maybe even seven nights a week. If the business has multiple owners, each owner’s hard work can go to waste if the owners fail to adequately prepare for unforseen events. Business planning, more specifically entering into a buy-sell agreement between the owners of the business, not only provides a smooth transition for unforseen events, but also ensures that the exiting business owner or his or her family receives its fair share of the value of the business.

A buy-sell agreement, at its most basic level, is an agreement between owners of a business which details what occurs if one business owner dies, becomes disabled, retires, divorces, terminates his or her employment with the business or desires to sell his or her interest in the business. Often, a buy-sell agreement provides that the remaining owner(s) or the company will purchase the deceased or exiting owner’s interest in the business. A properly drafted buy-sell agreement will set forth the purchase price of the deceased or exiting owner’s interest in the business or provide a mechanism to determine the purchase price. What many business owners often overlook is how the buy-sell agreement will be funded if one owner exits the business. The proper funding of a buy-sell agreement is as important as the determination of the purchase price. Without proper funding, the remaining business owner(s) may find it very difficult to raise the funds necessary to purchase the exiting owner’s interest in the business. One way to handle payment to the heirs of a business owner upon death is through the purchase of life insurance. Insurance companies sell “first to die” policies which pay a death benefit on the death of a business owner, ensuring that funds are available when one business owner dies.

The buy-sell agreement is critical to both the smooth transition of the business and the estate planning of each individual business owner. A properly drafted buy-sell agreement gives every owner involved in the business adequate assurances that the business they worked so hard to make successful will continue to be successful after their exit, while receiving the maximum benefit from the business upon their exit.

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A dog bite is a traumatic event that may result in serious injuries.  Often a dog bite will result in permanent scarring, nerve damage, and a significant risk of infection.  Many times there is psychological harm that lasts well beyond the physical injury.

In Pennsylvania, dog owners are legally responsible for the behavior of their pets.  In most dog-bite cases, the owner’s home insurance policy will pay the injured person’s medical bills, their lost wages, and for their pain and suffering associated with the attack.

Proving liability in dog bite cases: To prove that the dog’s owner is responsible for an injury due to a dog attack or dog bite, negligence must be proven.  Some of the ways to do this include:
A) Proving that the dog was “at large” when it attacked its victim.  In other words, the dog was running loose off of the owner’s property or not on a leash.
B) Proving that the victim was attacked while the victim was lawfully on the dog owner’s property, it must additionally be proven that:

• the dog had a history of unprovoked attacks.
• the victim was not informed of the dangerous nature of the dog.
• the owner did not protect the victim from the dog.  “Beware of Dog” signs are evidence that the owner was aware of the dangerous nature of the dog and failed to take precautions to ensure the dog did not attack.

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