WILLS AND ESTATE PLANING AND THE COVID-19 CRISIS

Posted on by Barbara J. Shah

Most people have given some thought to getting wills written, but we all think we are going to live forever…or at least for a long time.  Most of us are right.  However, now during this frightening time, many of us are reconsidering our mortality.

We are beginning to think about what would happen to our houses, bank accounts, cars, and other things we own, should something happen to us.  Actually, the Commonwealth of PA has already made the decision for us with regard to a substantial amount, if not all, of these assets.

If you are married and living with your spouse, most likely, your home, cars, and bank accounts are titled in joint names, and our spouses are named as beneficiaries of our life insurance policies and retirement accounts.  In PA, these assets go “by operation of law” (more or less automatically) to the surviving joint owner-spouse, the joint owner(s) of any deposit accounts, and the named beneficiaries of retirement accounts and life insurance policies.  Wills do not and cannot affect these assets. So those of you that are married can heave a sigh of relief.

However, what if you are not married or are a widow or widower, or you have a long-term partner to whom you want to leave your estate, or you want to leave your assets to your family members (or others) unequally?  What if you have a church or a charity you want to leave a part of your estate to?  What if you have a special needs child? What if you want to name the most financially stable of your family members as executor of your estate (An excellent idea)?

In that case, you should seriously consider having a will prepared which will make sure your estate will be distributed in the way you choose.  From long and sad experience, we can confirm that the ugliest fights are among family members after a loved one dies without having made provisions for distribution of his or her assets.

Consider consulting a lawyer to advise and assist you in drawing up this plan. You can prevent hard feelings and the waste of hard-earned money on attorney fees for battles amongst your heirs. Maybe the COVID-19 pandemic crisis is your signal to take care of that important but long-delayed matter of having a will prepared.

As Benjamin Franklin noted, “An ounce of prevention is worth a pound of cure.” 

Stay well and be safe.

Child Custody Lawyers Can Help Victims of Domestic Violence Protect Themselves and Their children

Posted on by Barbara J. Shah

You’re not alone

According to an article by Jennifer O’Neill in the February 2016 issue of Good Housekeeping magazine, Domestic violence is “a quiet epidemic.”  Though most of them are in plain sight, the victims are often “invisible,” as they deny the situation and pretend to live in a happy home.

But the statistics reveal a shocking reality.  Every nine seconds, a woman in America is assaulted or beaten, according to the National Coalition Against Domestic Violence.  O’Neill notes that a mind-boggling one in three women and one in four men has been a victim of physical brutality by an intimate partner, making intimate partner violence “the single greatest cause of injury to women,” according to the DVIP – Domestic Violence Intervention Program.

These statistics do not come as a surprise to us.  We’ve had many clients who are not upfront with us about the abuse they’ve endured. Even though they might be in the process of divorce or custody litigation opposite their abuser, they feel afraid or ashamed to talk about the abuse.  Once we’ve established a strong attorney/client relationship, however, these clients feel comfortable enough to confide in us, which helps us to better advocate on their behalf.

To illustrate the scope of the domestic violence problem, O’Neill explains, the number of women killed by a current or former male partner added up to nearly DOUBLE the soldier lives lost in war in Afghanistan and Iraq over the same 11-year time frame. Despite the alarming statistics, Amy Sanchez, director of Break the Cycle, suggests that as a society we often close our eyes to it.  Unlike heart disease or smoking, domestic violence is often considered a “private issue,” or a “family matter,” and people don’t talk about it.  In fact, according to the DVIP, the majority of marriages WILL include some violence; the FBI estimates that violence will occur during the course of 2/3 of all marriages.

It seems like domestic violence incidents are a regular headline in the news

Domestic violence and its impact on children

According to a publication in 2014 by the Childhood Domestic Violence Association, children from homes where there is violence are much more likely to experience significant psychological problems, both short and long term.  Many of them meet the diagnostic criteria for PTSD, and the effects on their brains are similar to that suffered by combat veterans.  Living with violence even ages a child’s DNA, aging them prematurely 7-10 years. Those children who grow up with domestic violence are 74% more likely to commit a violent crime against someone else.

Leaving a domestic violence situation

Obviously, removing children from an environment where there is domestic violence would appear to be the solution, but the answer is far from easy.  For one thing, only 34% of women injured by their domestic partner receive medical care for their injuries, and even fewer get law enforcement involved.  Just 25% of domestic physical assaults against women are reported to the police annually. Sometimes, the reason women stay in abusive relationships is fear of death or serious injury, if they leave.  Women are 70 times more likely to be killed in the 2 weeks after leaving than at any other time during the relationship, according to the DVIP.  And for the half of women who DO manage to leave abusive partners, an estimated 98% of abused women also experience “financial abuse,” in which their partner controls all of the money. Leaving will often cause abuse victims to lose their jobs, so they may escape, but with no income or financial resources.

However, it is important for victims of domestic violence to know that they have rights and resources available to them.  In Allegheny and surrounding counties, there are shelters that women and children can stay in if they are in danger.  These shelters are in confidential locations, and the courts are required to keep their locations secret in custody, divorce and child support proceedings.  Some of these shelters even have programs that allow women and their children to reside in apartments or houses (also at secret locations), for minimum rent to enable to the victim of domestic violence to get back on her feet and learn to live independently from her abuser.

Because the courts keep these locations secret, women should not fear that filing for child and/or spousal support will lead their abuser to them.  In addition, the Allegheny County Family Division, it’s satellite offices, and the Washington County Courthouse have many Sherriff’s deputies on standby.  If there is a concern that an incident will occur at a child/spousal support proceeding, we simply have to notify the court ahead of time, and they will make sure that deputies are nearby and watching.

Domestic violence victims shouldn’t be afraid to obtain a PFA

Among the 1 in 15 kids exposed to domestic violence, a heartbreaking 90% are eyewitnesses, who will feel the effect of it for their entire lives.  Assuming the mother of the children is able to take the children and leave her abuser, the abuser will often turn to the courts to continue his abuse.

As noted above, it is usually the abuser who has the superior financial resources, and they often use them to battle their ex-partners in court. Protection From Abuse (PFA) orders are required to be obtained almost immediately upon the experience of a threat or domestic violence, but as we know, most victims don’t report these assaults to the authorities or delay in doing so, thus robbing the courts of jurisdiction to enter them.

Victims should not refrain from attempting to obtain a PFA just because they think the court wouldn’t grant one, however.   In most cases, the court will grant Temporary PFA’s for a period of 10 days.  This means that the victim has at least 10 days in which the abuser is prohibited from contacting them before a final hearing on the PFA is held; this small window in time can enable the victim to secure housing for herself and the children, as well as file for child support.    At the time of the final PFA hearing, the PFA Plaintiff (the victim) is provided a lawyer for free to represent them at that final PFA hearing.  These lawyers are very qualified and experienced in handling PFA matters.

Domestic violence issues are a challenge in custody cases…

In custody cases, however, there usually is not enough funding to provide free lawyers for victims in custody cases, at least not in Allegheny and Washington counties.  When represented by an effective lawyer, abusers often deny the problem, making it a he-said-she-said  issue. Even in cases in which children appear in court in these custody or visitation issues, the mothers are often accused of instilling false stories in children’s minds to turn them away from the other parent.  It is essential that the victim of domestic violence have a child custody lawyer represent her.

We’ve found that there is such a strong inclination by the courts to see every case as a potential shared custody case, it can be difficult to get the court to focus on the very real issue of domestic violence and its effects on children, as well as the potential effects of allowing the abuser to have unsupervised custody of his children.

Very few courts have funding available to appoint a guardian ad litem (independent spokesperson) for children involved in custody disputes, or the funds to get unbiased studies on the parents and children by psychologists.  Supervised custody programs are also rare, because there is simply no source of funds for provide safe visiting arrangements for most of these families.  In fact, there often appears to be an unwillingness by judges to restrict contact between children and abusive parents, under the theory that “children deserve time with both parents.”

…but not insurmountable!

Fortunately, this is a problem that PA is starting to recognize in determining awards of custody. In 2011, a new custody statute was enacted which requires the court to consider the safety of the child as the most weighted factor in determining awards of custody.  The court must also consider “the present and past abuse committed by a party or a member of the party’s household, whether there is a continued risk of harm to the child or an abused party, and which party can better provide adequate safeguards and supervision of the child” whenever making a determination of an award of custody. So, when a parent is abusive towards the other parent or the children, the court must consider whether there is a continued risk of harm to the child and decide which party would adequately protect and safeguard the child from further abuse.  The custody statute also provides that in cases of domestic violence where safety measures are necessary to protect the child from harm, the courts cannot consider such measures an attempt to turn the child against the abusive parent. (See 23 Pa S.C.A_§ 5328)

The requirement that the courts consider the safety of the child is often at war with its need to fashion some kind of custody schedule.  Unless there are cases of extreme abuse, the courts are unlikely to prohibit the abusive parent from seeing the child at all.   This is a particular challenge considering the lack of facilities and organizations available to provide supervised visits.

We’ve found that if we can come up with a creative solution that will ensure the safety of the child but that allows time for visitation, the court will often grant it.  In many cases, we request that a trusted family member or friend be present for the visits, or visitation in a public place.

As your child custody lawyers, WE CAN HELP!

If you’re a victim or family member of a victim of domestic violence, don’t try to go it alone.  You should schedule at least a consultation appointment to learn what avenues of assistance are available to victims of domestic violence and their children.  We can help file for both child and spousal support.  We are experienced child custody lawyers, experienced in fighting for survivors of domestic violence and their children in court.  We are familiar with counseling and other kinds of services available for those who are coming out of a domestic violence situation.  We’re here to help.

 

 

Dispute between Parents over Football Leads to Custody Litigation

Posted on by Barbara J. Shah

Can one parent overrule the other parent on the question of a teenager playing football?

  A Pittsburgh-area Dad wound up in court in his attempt to prevent his youngest son form playing high-school football.  Alarmed about the link between football and long-term brain damage, John Orsini tried to persuade his ex-wife to prohibit their youngest son from playing high school football.  When she refused his request, she noted that he should be allowed to continue playing because he understood the risks. She thought Dad was just being overprotective.  However, as the former head of a leading divorce lawyer association stated, the “football controversy” is actually a real medical issue.

Courts have tried to stay out of micro-managing custody disputes

So what was Orsini to do?  Local Family Court Judges strongly favor a joint or shared legal custody situation, in which important decisions are shared between parents who are separated or divorced, although physical custody arrangements which set forth the days or times the children stay with which parent may be substantially different.   However, the courts have been reluctant to get involved in decision-making relating to the children, finding that a slippery slope that encourages “revolving door” parents to come back again and again for little disputes, particularly when there is high conflict between the parents. A few years ago, Family Courts began to use “parent coordinators,” specially -trained mediators who would work with the parents and try to resolve their differences, but when agreement could not be reached, the parent coordinator was empowered to choose the position that he or she felt was best for the child.  The law which was passed to enable this procedure gave the disappointed parent the right to challenge that decision by asking the judge of the case to hold a hearing on the issue. However, within a year or two after the law was passed, the PA Supreme Court declared it unconstitutional.  Back to the drawing board.

The struggle over football is a serious issue

As reported by the New York Times on March 5, 2018, it is impossible to say precisely how many disputes over football are occurring in family courts, but it is clear that across the nation there have been increases in custody litigation related to children playing football (or hockey).  In Orsini’s case, Orsini has always been an enthusiastic supporter of football; their oldest son plays football in college. However, his view of the game changed when their second son experienced 3 sport-related concussions. Orsini felt that his son’s doctors were taking them too lightly, when they kept releasing him to play, telling Orsini that there was no medical evidence that his son should not continue to play.  Having worked as an attorney, he felt that the doctors were less than forthcoming about the risks.  He undertook research and found, among other things, that Boston University researchers reported cognitive problems in boys who began playing tackle football before the age of 12.  He instructed the school to prohibit their son  from practicing and playing football, on the ground that he and his ex-wife had joint legal custody.  Initially the school complied with his request.

What remedies are available to parents who disagree?

Orsini’s ex-wife, Janice, filed an emergency request in Family Court to allow their son to play football, arguing that she was just trying to maintain the status quo.  Mr. Orsini came to court and argued that playing football should not be considered the status quo, since their middle son had already suffered three concussions, and that common sense, together with the results of research on the brains of young boys, dictated that the son’s best interests would best be served by not permitting their youngest son to play football.  Initially, the judge allowed Mr. Orsini’s ban to stand, but 3 weeks later when Mrs. Orsini filed a petition to gain sole legal custody of their son related to this issue, the judge agreed with her and agreed to let the boy resume playing football while the case went through the regular process required of petitions for modification of custody.  The case is now going through the mediation process, but no positions have changed.  It is likely that it will be scheduled for trial at which point the judge will have to choose which parent should have legal custody to decide whether the child can play football.  In the process, the parents’ relationship, already contentious, has been badly strained, and the sons now rarely speak with their father.  The case has dragged on, and Mr. Orsini fears that if he can’t stop his son from continuing to play football, that he is on track to have serious brain damage done.

No solution seems close for this dispute.

How to be an Executor of an Estate

Posted on by Barbara J. Shah

Benjamin Franklin said that two things are certain:  Death and Taxes.

Most of us accept the fact that we will die sooner or later, hopefully later.  However, how many of us are prepared for our death, or the deaths of our parents and loved ones, in the matter of disposing of our (or their) earthly possessions?  Many TV lawyers frighten particularly older adults, suggesting that unless they take certain steps (like sign up for a living trust which they will happily sell you for a couple thousand dollars or so), the state or the government will “dispose of their assets for them” or even take them. This is TOTAL BALONEY.

What happens when you don’t have a will?

In Pennsylvania, the assets of every person who dies without having a will and owning assets at the time of their death are distributed to their heirs under an orderly system set forth in PA law, which determines who are the natural heirs of the deceased and how the estate is to be divided between them. To do this, a relative (or family friend who is willing to do the job if family members do not want it) is appointed the “administrator” of an estate by the Register of Wills of the County the decedent (legal term for the person who died) lived in, and the law provides the steps the administrator must take to properly administer the estate and distribute the remaining assets to the heirs.  This is not to say that the process always runs smoothly; often there are disputes between the heirs, sometimes even over who is to be administrator, as well as over the appropriate distribution of the assets.  Writing a will while still alive and having the ability to do so, naming an executor, naming the heirs, and listing how the assets of the “testator” (This is the legal term for the person who wrote the will. The female version is “testatrix”) are to be divided saves time, attorney fees and expenses, and hard feelings between heirs.

It’s All in a Name

What is the difference between an “executor” and an “administrator?” An “Executor” (the term for a female executor is “Executrix”) is the person listed by the deceased person in their will to carry out the estate administration.  Quite often a secondary or successor executor will be named, in case the first named executor is unwilling or unable to carry out the duties of administering the estate.

 Executors have a Fiduciary Duty

The executor is called in legal terms a “fiduciary.”  That means that the executor is bound by law to faithfully carry out the instructions of the testator in administering the estate, as well as by the law of Pennsylvania, and when they are sworn in at the Register of Wills, they take an oath to do so.  This means that they should act promptly to collect and safeguard the assets of the estate, without playing favorites among the heirs. If there are cash assets or other accounts of the decedent, bank or investment accounts, they need to be converted into estate accounts, which means that a social security (estate identification) number must be obtained for the estate. The executor must make sure that all assets of the testator are located, insured and kept safely from theft. The executor must prepare and file and estate inventory listing the assets of the estate and their values.  Then they must prepare and file a PA inheritance tax form and pay any inheritance taxes due on estate assets from the assets of the estate. They must also make sure that all legitimate debts of the decedent are paid from the estate assets and reimburse those who paid funeral or other death-related expenses for the decedent.  They may need to sell some of the assets of the estate to accomplish this, and they must attempt to get the best price possible (the “fair market value”) for these sales.  Any proceeds from these sales must go into the estate account. In certain cases, the judge of the county Orphans Court must specifically approve of the sale of real estate. If some of the heirs are minors, a trust may be needed to be set up for them, if not specifically set forth in the will. PA law provides that the executor, as well as the attorney for the estate, who usually prepares the paperwork and guides the executor in administering the estate, are entitled to be compensated for their work, but these fees may not be “excessive,” considering the amount of work done, and they are always subject to review by the court which must approve the final accounting necessary to close the estate.

Closing the Estate

If all the debts of the deceased have been paid, and all the heirs are adults and agree as to the values of the assets, the expenses of the estate, and the distribution of the remaining assets of the estate, a Family Settlement Agreement may be prepared by the lawyer and signed by all the heirs.  Then and only then can the estate be closed and all of the remaining assets distributed. If the heirs are not in agreement or some of the debts of the deceased have not been paid, the lawyer must prepare an accounting and take the case to audit in front of the Orphans Court judge, where those who disagree, including creditors of the estate, may raise objections to the actions of the executor, the values of the assets, the attorney fees and costs and executor fees, and such during the audit proceeding.  If an executor is found to have wasted assets of an estate or converted them to his or her own use, they may be fined, and in severe cases, prosecuted and jailed.

Choose your Executor Wisely

In sum, the executor of the estate is responsible for acting promptly, fairly and following the instructions of the testator and the law.  He or she can be removed as executor by the judge upon petition by heirs or creditors if he or she does not carry out their fiduciary duties responsibly.  When clients come to me to write a will for them, and we come to the part where they name an executor to administer their estate, I instruct them firmly:  This is not an honorary position.  It is work, and it requires patience and duty and fairness.  Do not pick your oldest, or your son, or some other family member just because you are concerned that they might feel left out or slighted.  Pick the person (maybe not even a relative) best suited to be the business manager of your estate.  If you have been chosen as executor of an estate, be sure to execute your duties faithfully and fairly.

 

 

 

Gerrymandering, Gun Violence and the Sad State of Legislative Gridlock

Posted on by Barbara J. Shah

According to most reports, following the September 14, 2012, Newtown, CN grade school massacre, 90% of Americans, including gun owners and NRA members, were in agreement that some stronger controls on the purchase of weapons was appropriate.  Background checks for 100% of gun purchases, eliminating the gun show loophole, and a nationwide coordinated automated registry of domestic violence perpetrators and those with mental health commitments, were favored by many of the American people.  Even the President was in favor of these measures.  Yet no such laws were even introduced into Congress, let alone voted on by the members. Why did this happen?

 

Fast forward to the Summer of 2017; although the Affordable Care Act (“Obamacare”) had by that time become favored by the majority of Americans, the U. S. House of Representatives passed the American Health Care Act, which, if enacted into law, would have stripped health insurance from millions of Americans, increased premiums, and given a huge tax benefit to wealthy health insurance companies and executives.  The U. S. Senate, which put together its own Obamacare repeal act, came within one vote of passing an even more draconian bill.  Rather than working with Democrats to fix the problems which were causing health insurance premiums to rise, the Republicans looked only to the Republicans to pass their legislation. Why was Congress so out of touch with the people it was elected to represent?

 

As a PA resident, I have seen similar gridlock in the legislature of this Commonwealth.  Both houses of the legislature are controlled by Republicans, and our governor is a Democrat.  I have been working with a non-partisan group known as Fair Districts PA, an anti-gerrymandering organization which advocates for an amendment to the PA Constitution to take the power of drawing PA State and Congressional Districts away from our partisan legislators and assign the job to a panel of non-partisan citizens.  In order to amend our Constitution to permit this, identical bills should be introduced and passed, one each in the PA Senate and PA House, for two consecutive legislative sessions, and then it has to be voted on by PA voters as a special question during an election.  The bills have been written and introduced, co-sponsored by both Republicans and Democrats, but the House Majority Leader refuses to call the House Bill up for a vote. It is clear that the vast majority of PA citizens are opposed to gerrymandering and would prefer maps drawn up by a non-partisan commission.  Why aren’t these bills being called up for a vote?

 

In similar fashion, the annual PA budget is at a standstill.  Although the Governor and the Republican Senate have reached agreement on a balanced budget which would institute a small severance tax on the gas extracted from fracking in PA (PA being the only state from which there is oil or gas extraction which has no such severance tax), but the PA House refuses to even consider an extraction tax.  At present this leaves a $1.9 billion hold in the budget.  The House majority leader, interviewed on NPR in October 2017, admitted that the House Democrats would vote for an extraction tax, and some of the Republican members would also accept an extraction tax, but the majority of “his caucus” was not agreeable to it, so they were not interested in pursuing that option.

 

The majority of Americans favor legislation which would allow DACA recipients a path to citizenship, however no bills to accomplish this are on the horizon.  On the other hand, the U.S. House of Representatives recently introduced and passed (with mainly Republican votes) an anti-abortion bill that I am certain the general public is not clamoring for.  Certainly, many of their “base” is supportive of this, but I am certain that few legislators paused to check with their constituents to see if this was a high priority item with them.

 

Across the nation, both state legislators have and U. S. Congressmen and Senators been refusing to hold town halls or meeting with numbers of the voters in their districts, fearing an ugly confrontation with constituents who disagree with the positions they have been taken on some of these issues. This all seems to odd.  Why wouldn’t they want to hear from their voters?  Why would they vote in ways contrary to the wishes or best interests of their constituents?

 

Legislatures have hearings on issues which everyone agrees upon, like the Equifax data breach, where Senators took turns lambasting the former CEO about what a terrible thing the data breach was.  Did we need a hearing to determine this?  Or were they just posturing for the public?  Looking at their legislative calendar, we see them proudly point to laws that celebrate local heroes or toughen restrictions on people who hurt animals, while the real issues of the day fester. Our entire legislative system has fallen into disarray.

 

The one theme which runs through all of these illustrations is that party loyalty now trumps state, district or local issues. In as many as 20 U.S. states, the election districts are “rigged” or gerrymandered to yield a majority of “safe” seats to members of one political party or another. This is done through a variety of methods, generally the majority party in a state legislature drawing electoral boundaries using computerized voter data and maps, which “pack” or “crack” groups of voters into voting districts to result in a permanent majority for that party in the legislature, or in the U. S. Congress, following a U. S. Census.  For example, the majority Republicans redrew the Wisconsin legislative districts in 2011 (following the 2010 Census), in such a manner as to produce a result that, while Democratic candidates for Wisconsin legislative seats won a clear majority of votes in 2012 and 2014, they were never able to capture more than 39 of Wisconsin’s 99 legislative seats.

 

As a result, loyalty to the wishes of party leaders or the party “caucus” has become more important than listening to the desires of the voters in that legislator’s district.  If a legislator has the temerity to “disobey” the party leader or caucus, they are likely to face a well-financed primary opponent in their next re-election bid.  And who votes in the primaries?  Across the nation it is the same in “closed primary” states (like PA), where only voters registered as members of that party, often a small minority of voters, mostly the party faithful, end up voting in the primaries, nominating candidates who are on good terms with their party leaders.  Voters who are not aligned with either of the major parties are left out of the candidate selection process altogether. CA has chucked this entire system, with entirely open primaries, so that the “top two” vote-getters will face each other in the fall election.  They, a progressive state, are the only state in the US with this electoral system.

 

The big money that is allowed in political campaigns due to the U.S. Supreme Court’s decision in 2014 in the Citizens United case.  has also exacerbated this problem of candidates not paying attention to local issues, because it seems that all races are “nationalized,” by painting the disfavored candidate as a “tool” of the right-wing or left-wing “radicals.”

 

A recent poll indicates that the political parties in this country are now more divided on issues than ever before; in earlier days, Senators and Congressmen often worked “across the aisle” to solve this nation’s problems. Nowadays that has almost become a thing of the past.  The U.S. Supreme Court has just heard arguments on a case brought by Wisconsin voters, which claims that their politically gerrymandered districts violate the Constitution and threaten our democracy.  A similar lawsuit is pending in PA.  Something definitely needs to change, if our legislative bodies are to return to caring about local issues and the hopes and dreams of their constituents, rather than a national strategy.  Let’s hope we find a way back to the system the writers of our Constitution intended, and away from unyielding partisan positions.

 

Gun Rights and Domestic Violence in America

Posted on by Barbara J. Shah

Just a little over a year ago, on September 1, 2016, the Pittsburgh Post-Gazette carried the following article: “Long-time abusive relationship ends with death of Washington County Couple.” The article tells the all-too-often story this way: State police trooper Sarah Teagarden got the call in the wee hours of Tuesday: Kevin Ewing had cut off his ankle bracelet and had taken at gunpoint his wife, Tierne Ewing. It was the second time in two months the Washington County couple were on police radar. The first time, on July 8, Mrs. Ewing had escaped after being held for 12 days and tortured by her 47-year old husband…locking her in a closet… and threatening repeatedly that he would shoot her in the head then shoot himself, too. He made good on his word Tuesday night…. . The article continued, “it was [s]enseless and sad but not unexpected. The couple, childhood sweethearts, had a relationship marred by verbal and physical abuse as long as anyone could remember.”

In 2001, court records show that Tierne got a PFA (Protection from Abuse) order which restricted Kevin from having any contact with Tierne. He violated it at least twice, and 2 criminal cases were filed against him that year, as a result of which he spent at least 7 months in jail.

After the July 8 incident, Tierne Ewing got another PFA order which not only restricted Kevin from seeing her, but also required that he surrender all of his guns (he owned several). Unfortunately, the guns were “surrendered” to his mother. (This is the result of a loophole in PA’s Protection from Abuse law; during the summer of 2017 an amendment to the law to require the surrender of guns in PFA cases to be made to police departments or licensed firearm dealers was proposed, but it failed to be brought up for consideration by the Republican majority.)

On Tuesday, August 30, Kevin cut off the monitoring bracelet installed on his ankle by the court, took one of his guns from his mother’s house, and kidnapped Tierne at gunpoint, taking her to a nearby barn where he apparently held her for several hours. As the police were closing in, he shot her in the head and then shot himself.

Since the Las Vegas mass shooting on October 1, 2017, there has been a great deal of discussion about gun violence in the U.S. and how to avoid it, or at least some of it. The nub of the problem extends to the courts’ interpretation of the Second Amendment to the U. S. Constitution, which says, in whole, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” That’s the whole Second Amendment. Does it mean that everyone has the right to have as many guns of any and all types as he or she wants? Does it mean that the State (or Federal or local government) cannot impose any regulation or law restricting the purchase or possession of guns or gun accessories by any American? Clearly the answer to the second question is no, but the forces supporting a broad interpretation of the Second Amendment push back when any curtailment of “gun rights” is being proposed or attempted to be enacted into law. The answer to the first question is …well, maybe.

So, let’s talk about the impact of these issues on society, but more specifically the lives and homes of Americans. Some sample statistics: According to the Violence Policy Center, more than 5 times as many women were murdered by an intimate acquaintance than by a stranger in the year 2000. Additionally, while firearm homicides involving male victims were mostly committed by male perpetrators, 95% of female firearm homicide victims were murdered by a male. Congress, recognizing the unique and deadly role firearms play in domestic violence passed the Protective Order Gun Ban in 1994. The law prohibits gun possession by a person against whom there is a restraining or protective order for domestic violence. In 1996, Congress passed the Domestic Violence Misdemeanor Gun Ban, which prohibits anyone convicted of a misdemeanor crime of domestic violence from purchasing or possessing a gun. Sounds like problems solved, right? Well, not so fast….

In an article in October 2015 by Christina Cauterucci, “How Domestic Abusers get to keep their guns, Cauterucci points out that the 1996 law, spurred by the staggering statistics such as those mentioned above, left two gaping loopholes. First, even though the victims of intimate-partner homicide are usually dating their partners, not married to them, the federal definition of domestic abuse required that the couple be married, cohabitating, or the parents of shared children. This is called the “boyfriend loophole.” The other loophole in the federal gun ban for domestic abusers also leaves the perpetrators’ existing gun collection untouched, which renders it ineffective against abusers who already owned firearms.

On March 17, 2013, Michael Luo wrote in an article in the New York Times, “in Some States Gun Rights Trump Orders of Protection,” that in statehouses across the country, the NRA and other gun-rights groups have beaten back legislation mandating the surrender of firearms in domestic violence situations. They argue that gun ownership, as a fundamental constitutional right, should not be stripped away for anything less serious than a felony conviction and certainly not, as an NRA lobbyist in Washington State stated to legislators, “for the mere issuance of court orders.” Luo notes that the 1994 Protection Order Gun Ban is rarely enforced; during 2012, prosecutors nationwide filed fewer than 50 such cases, and as a result, the law has largely fallen to a state-by-state patchwork of laws to regulate this issue. Or not. A 2013 a federal law named Zero Tolerance for Domestic Abusers Act was introduced to close the “boyfriend loophole” and extend the law to convicted stalkers and abusers of any former intimate partner, but it failed to pass.

History will judge whether the Moms Demand Action for Gun Sense in America, a group which formed after the Newtown, CN, massacre of grade school children and teachers, can change the minds and hearts of Americans, or, more importantly, their legislators, and begin the serious consideration of common-sense methods for avoiding further gun violence in America.

Gerrymandering in Wisconsin – The U.S. Supreme Court looks at the issue on October 3, 2017

Posted on by Barbara J. Shah

The term “Gerrymandering” has been the subject of a great deal of discussion this year throughout the nation. The term “gerrymander” (pronounced “Jerry-mander”) was introduced into the language more than 200 years ago, when this technique was used by then Massachusetts governor Elbridge Gerry to produce a voting district shaped like what news organizations compared to a salamander; they then began calling it a “gerrymander.”

The practice occurs when a state with weak laws regarding the power of the state legislature to set boundaries for both state legislatures and U. S,  Congressional districts, and the party with the majority uses their power to reshape those election districts to favor voters from that party, usually by “packing” (drawing district lines so that other party’s voters are all crammed into districts together often producing a 85-90% percentage of those party’s voters), or “cracking”, in which the not-in-power party’s voting districts are broken up and put in with districts where their voting power is overwhelmed or diluted by the in-power-party’s voters. Although gerrymandering has been going on for more than 200 years, the advent of computers which can assist in drawing these lines finely has made the practice nearly universal in those states whose laws give loose permission for the state legislature to draw district lines.  PA is one of them, and is considered one of the most-gerrymandered states in the nation.

This problem arises for two reasons:  there are only 435 seats in the U. S. House of Representatives, and the U.S. population increases and/or moves around.  So every 10 years we have the U.S. Census, which determines how many persons are in each state, and therefore how many representatives should be “apportioned” to each state.  PA las lost representative in the past 2 censuses (which have been gained by the Western and Southern U.S.), and it will probably lose one or two representatives in the 2020 census.  As a result each state affected must “reapportion” its voting districts to divide them up, so that each voting district within the state will have approximately the same number of voters. (Voters also move around in states, so this in-state migration also must be taken into account).  Within each state, the number of state legislators remain the same, but in states where the laws regarding how districts are weak, the state legislative district lines are often gerrymandered as well, as they apparently are in Wisconsin.

The U. S. Supreme Court has recently decided in challenges to election districts in Texas and North Carolina, that districts gerrymandered along racial lines are unconstitutional.  However, the issue about voting districts gerrymandered along political lines has so far not been seen by the U. S. Supreme Court as a question they could resolve. The Gill v. Whitford case, brought by voters who complained that gerrymandering of voting districts in Wisconsin has deprived them of their rights.  In a New York Times article on October 2, 2017, Michael Wines discusses the issues at stake.

 

The background of the Wisconsin case is that in 2010, after taking control of Wisconsin’s legislature and State Capitol, the Republicans used computer models and voting data to redraw political boundaries for the Wisconsin Assembly.  This map insured that Republicans would continue to control the majority of the seats in that legislature.  In 3 elections since the map was redrawn, Democrats have never won more than 39 of the 99 seats in that body, even though statewide the Democrats won a majority of the votes cast for Assembly candidates.

The theory behind the Wisconsin case is that in 1964 the U.S. Supreme Court ruled that political districts must contain approximately equal numbers of people, thus dividing the districts unevenly violated the Equal Protection Clause of the 14th Amendment to the U. S. Constitution. The plaintiffs in this case, a group of Democrats represented by an advocacy group, the Campaign Legal Center, are hoping to expand that one-person-one-vote principle of partisan gerrymandering.  They argue that by banishing Democrats into gerrymandered districts that make their votes effectively useless, the Republican line-drawers have violated the 1st Amendment (Equal protection clause), along with the 14th Amendment, because it “punishes” Democrats for expressing their political views by their votes.

This is not a new argument; in the past some decisions of the Supreme Court have indicated that there might be some situations in which partisan gerrymandering could violate the Equal Protection clause, but also that some partisanship is unavoidable and therefore acceptable.   In his NYT article, Wise notes that that makes the real question – the one which has “tied the court in knots” for 3 decades—tougher: Can the justices devise a yardstick that reliably measures when a gerrymander oversteps constitutional bounds?  Or would that overstep the court’s own bounds and plunge it deeper into the political thicket of legislative duties?”

Opponents of gerrymandering, such as the Fair Districts PA organization in PA, believe that the answer is clear.  Among the 54 friend-of-the-court briefs filed in this case, the Brennan Center for Justice at the NYU School of Law argue that “precisely because extreme partisan gerrymandering subverts normal politics, it cannot be addressed by normal politics.”  In another brief submitted by the Republican State Leadership Committee, they argued that a holding in favor of the Wisconsin plaintiffs “would politicize the courts and would go far beyond intervention in the ‘political thicket:’ it would impale the judiciary on its thorns.”

On the U.S. Supreme Court there are 4 justices who are likely to vote in favor of the Wisconsin plaintiffs, and four, including the new Justice Gorsuch, who are likely to disapprove of their position.  Justice Kennedy, the potential “swing” vote, has publicly stated his distaste for partisan gerrymandering, but has wrestled with the question of whether the Court could find a way to remedy it. Approximately 20 U. S. states, including PA, would be affected if the court found in favor of the Wisconsin plaintiffs.

Wise in his article quotes Richard H. Pildes, a professor of constitutional law and an election-law expert at NYU, who said in an interview, “I think this is a very important moment for the democratic system, in the United States. That’s not to say a court decision striking this gerrymander down is going to address all of the problems we’ve got, but in the absence of some sense of constitutional boundaries the pathologies of this process are just going to grow and grow.”

The question posed by anti-gerrymandering groups like Fair Districts PA is: “Shouldn’t the voters pick their legislators rather than letting the legislators picking their voters?” Many eyes and ears in the U.S. will be tuned in on the argument on this case at the Supreme Court. Much is at stake.

Practical Advice in Choosing the Right PA Divorce Lawyer

Posted on by Barbara J. Shah

Choosing the right lawyer to handle your divorce is not an easy one, and it certainly isn’t a decision one should make lightly.  But with the thousands of lawyers that are currently practicing law in Pennsylvania, how do you make the right choice?  Read on for some practical advice in choosing the right PA divorce lawyer for you:

Beware of Lawyer Rating Services

Many younger PA divorce-seekers do a lot of divorce research on-line, or they assist older divorce-seekers in finding information online.

Most of the online lawyer rating services are unreliable, IMHO. We don’t know all of the lawyers in our area of Southwestern, PA who do divorces, but we pretty much know who the good ones are.  We see that some lawyers have high ratings that we believe are totally unjustified in terms of our knowledge of their expertise in handling divorce matters.  It seems old fashioned, but word-of mouth referrals are usually your best bet.  Ask people you know who’ve been through a divorce for a referral!

Insist on Meeting your PA Divorce Lawyer in person

Many divorce seekers (or seekers of divorce information) don’t know what to expect from lawyers during their consultation appointment, or thereafter.

It is virtually impossible to conduct an effective consultation appointment over the telephone, or in an internet chat; we need to look each other in the eye and gauge whether we are getting accurate information or whether the information we are giving the potential client is getting through. Some clients lie…

You Get What You Pay For

If a divorce lawyer is offering you a “free consultation,” they must not be busy enough; there may be a reason for this…

If the divorce lawyer has no support staff, or works out of his or her basement, maybe they are building up a practice (hey, I started by sharing law office space with an established lawyer), but bear in mind that it is likely they may not be available to you when needed, as they have to go to court, write pleadings, answer telephone messages, etc. all by themselves. Yes, voice mail and text messaging is handy, but if you have a burning question, it may be cold comfort to you.

As a corollary to the above, then, bear in mind that a lawyer whose fees appear to be “cheap” or much less expensive than others, may have insufficient support staff. Personnel and offices and computer systems cost money, but they make the lawyer much more available to answer important client questions and take action in emergencies.  If you don’t get a response within 24 hours to an urgent question, (it should be the same day), it brings a level of anxiety into the process which experienced lawyers want to avoid.

Just because a lawyer is expensive, however, it doesn’t mean that they are the lawyer for you. Ask around, find out how satisfied friends or relatives or co-workers have been with their divorce attorneys (or how impressed they were with the skill level of their spouse’s attorney).

Real, practical advice = Good Advice

The right lawyer for you will take in a great deal of information about you and your marriage, your children, and your spouse, and they will educate you on the divorce, support, and custody laws of Pennsylvania. They will tell you hard truths, truths you may not want to hear but need to know.

The right lawyer will have a sense of humor, be able to relate, but will not feel sorry for you. We must analyze the situation as the court would and work to develop a strategy to reach an outcome that is acceptable, in the long run. As changes occur, they will keep you informed and will modify the strategy, with your approval.

Communication is Key

The right lawyer will keep you informed and will communicate with you regularly, usually by email, and will want your input and response to actions and communications in your case.

Your lawyer will charge you for all communications, telephone, email, written, etc., because he or she has nothing to “sell” but his or her time. Don’t expect them to work for free, particularly when they have an office, staff, and other overhead expenses.

Divorce Lawyers should be Tough, but Professional (even if you secretly hope they beat your ex into a pulp on the courtroom floor)

Your lawyer will very likely know and hopefully have a cordial relationship with your spouse’s lawyer. Our job is not to hate or scorn the other side; our job is to get the best result for our client, and we have learned that cooperation, not flame-throwing, is the best way to achieve this with a minimum of expense.

Few Surprises

It is possible but unlikely that you will be unhappily surprised by developments in your case, if you have been listening to your lawyer and following their instructions. Most experienced divorce lawyers are fairly good predictors of outcomes and are trying to save you attorney fees and anxiety by attempting to settle your case, along lines you have already discussed and are prepared for.

Choose Wisely

 

If you hear someone complaining that divorce lawyers are money-grubbing thieves, it is possible that they have had a bad experience with their lawyer.  We have met many of those people, and we have performed case “rescue missions” more times that we can count.  Or it is possible that they had unreasonable expectations or are trying to get something for nothing.  Choose wisely.  Your future may depend on it.

 

 

Rethinking Equally Shared Custody Arrangements

Posted on by Barbara J. Shah

In Pennsylvania, until the 1970’s, when parents of children under the age of 18 separated, the “tender years doctrine” applied.  That meant that there was a presumption in the law that children “of tender years” were better off with their mothers as their primary custodians.  It also meant father were relegated to the role of “visitors,” and that the custody arrangements for fathers were known as “visitation,” generally something like every other weekend and a dinner visit or two during the week, and some sharing of holiday custody.   In order to obtain  “primary custody” of his children, a father had to prove that the children’s mother was “an unfit mother.”  Do these phrases sound familiar?  Well, they shouldn’t, because for the last 40 years or so, the “tender years doctrine” has been outlawed in Pennsylvania, since PA adopted an equal rights amendment to its constitution.

That is not to say that PA courts enthusiastically accepted the demise of the “tender years” doctrine automatically.  The same judges who had been automatically awarding custody of children to mothers were still on the bench, some of them for many years thereafter.  It was as if even though a new custody law was adopted which required that “the best interests of the child” be considered by the courts in awarding custody, the scales seemed to tip in favor of mothers for quite a while.   After all, mothers could proudly claim, they had been the stay-at-home parent for the children for their whole lives, and the fathers didn’t know the first thing about parenting.  Well, that was then and this is now.

As we know, married women with children have been entering the workforce in great numbers during the last 40 years.  More good-paying jobs have opened for women, and women have for some time been a growing part of college and professional education students.  When I began my college education many years ago, the ratio of “boys” to “girls” on campus was something like 4 to 1.  Now is it often 50-50, and in some areas of higher education women outnumber men.  Men have in many cases stepped up to the task of co-parenting children with their wives.   However, another trend that has affected families is the sheer number of divorces and out-of-wedlock births which have made the old profile of mother-father relationships nearly obsolete.

Judges have changed too.  The old judges have died or retired, and the new breed of judges, raised in the latter part of the 20th century or the first part of the 20th century, don’t usually tip the scales in favor of mothers any more.  Despite the shrill claims of “Fathers’ Rights” groups, there is no presumption based on gender.  Ask any lawyer who practices family law primarily (or solely); they will tell you that when they first meet a judge or other court officer in a custody situation, the judges expect them to offer some kind of equally shared custody arrangement between mother and father, or be prepared to explain/fight for some other arrangement.   The “Ackerman plan,” or 5-5-2-2- custody arrangements, came into vogue around the turn of the century, and these have been enshrined as ideal custody arrangements for all children, along with shared legal custody (shared decision-making) of the children.

.  Another development which pushed this movement along was the adoption in PA of modified child support guidelines that gave a break in child support payments to support obligors with 40% or more overnights with the children.

So this social experiment has been happening for some time, and how it is working?  As lawyers concerned for the welfare of children involved in custody disputes, our observation is that the results are mixed at best.  We are delighted when we are able to assist an involved and caring parent in obtaining substantial custody time with the children, be it the mother or the father. What we are less delighted with is that the less experienced judges whom we appear in front of in child custody cases seem to have adopted a general presumption that equally shared custody is best for everyone. What that means is that when equally shared custody does not appear to fit this family well, we have to work (and spend large quantities of clients’ money) to overcome this unspoken “presumption.”  It was not contained in the recently-modified PA custody law. One size fits all is not for every family.  What the 5-5-2-2 schedule means for children is that they have a lot of adjustments to make, and they bear the brunt of the going back and forth between households several times a week.  In a recent article in the local legal journal, a Pittsburgh area family lawyer recounts the experience of being one of those children in a situation where the parents or the court adopted a 5-5-2-2 custody schedule for her and her younger siblings.  In her case, her parents refused to communicate directly, and it put the crushing burden on her, a young teenager, trying to find her place in the world, to make any schedule changes or accommodations between the parents, to make this schedule “work.”  In her mind, because of non-cooperation and non-communication between her parents, this schedule was unfair to the children.  Don’t get me wrong, there are lots of advantages to children of a custody schedule which permits them substantial contact with both caring and loving parents, when they are able to cooperate.  Children’s mental health is more stable when both parents are actively involved in their lives. It’s when one parent is so angry or bitter at the other parent and insists on sharing “his” or “her” side of the marital dispute with the children in an attempt to turn them against the other parent, that this kind of arrangement breaks down.  Cooperation and co-parenting is a must for shared custody arrangements to work well for the children.

It would be good if judges, rather than reflexively suggesting an equal overnight custody schedule for every family, took the parents’ ability and/or willingness to cooperate and communicate into account more often, in thinking about custody arrangements.   That would be in the children’s’ best interests.

How is PA Child Support Collected and Enforced?

Posted on by Barbara J. Shah

PA child support is collected by the state, once an order for support is          entered.  The process of filing for support and establishing a support order  are subjects of other posts.   This post assumes that you are the payor/obligor of a PA child support order which has been entered and is being enforces by PACSES, the PA State Child Enforcement System.  The arm of this system which collects and disburses support payments is called PASCDU, the PA Support Collection and Disbursement Unit.  Once a child support order has been entered, a case number is assigned to the case (and separate identification numbers are assigned to each party and child involved in the order.)  A wage attachment goes out to the payor’s employers from PASCDU, to enforce the order.  If there are arrearages, the wage attachment is generally increased to collect any arrearages.

PASCDU keeps a close watch on support orders and payments – they are required to by the Federal Government, which funds most state child support collection efforts.  Once an obligor falls 30 days in arrears on the amount of the order, collection efforts begin, which can include scheduling a contempt hearing, notifications to credit rating agencies, seizing bank accounts, and even suspending driver’s licenses and professional licenses.  If an obligor files a tax return and expects a refund, but owes arrears on child support, the refund will be used to pay any outstanding arrears.  It hasn’t always been this efficient; years ago, arrears were often accumulated in large amounts for various reasons.  Nowadays, because of penalties imposed by the Federal government and massive computer databases, those cases are much more rare.

In cases where the obligor is self-employed, wage attachments may not be effective in collecting the full amount of support, but the PASCDU computers and collection system are on the case 24 hours a day, 7 days a week.  A contempt hearing is likely to be scheduled, and at that hearing, the obligor is given an opportunity to make arrangements to pay the arrearages, and make on-time payments thereafter, but it is not uncommon for the court to order the obligor to jail if the obligor does not comply with the payment arrangements set by the court. PASCDU does not care if the obligor is able to pay rent or car payments; its first goal is to collect support ordered by the PACSES system.

There is no statute of limitations on court-ordered child support payments, nor can they be avoided by moving to another state or by taking another job.  PASCDU will track the obligor through their social security number and will obtain assistance from the state the obligor has moved to, to collect the order.  States are required by the Federal government to cooperate and assist other states in collecting support payments from persons who reside within their borders.

The moral of this story is:  if you owe a Pennsylvania child support order, you must pay it as ordered.  If for some reason the amount of the order is not correct, or circumstances have changed which make the existing order no longer appropriate, you must file a petition for modification in the state which entered the order, to change the amount.  Shah Law Group is experienced in working with Pennsylvania child support cases and can assist in this process.  Give us a call!