Can a Pennsylvania Grandparent Get Primary Physical Custody of Grandchild? Yes and No.

Grandparents can get primary physical custody but It’s all about standing. That is, whether or not a grandparent can even get in the courthouse door, figuratively speaking. The short answer, then, is that when a grandparent is the one who actually does the “parenting” of the child, the answer is yes; the grandparent can obtain primary physical custody of a grandchild.

By “parenting”, though, I mean more than just helping out mom or dad. The operable legal term is in loco parentis. If a grandparent stands in loco parentis, then primary physical custody is achievable. Most of the time this means the grandchild, if old enough, looks to the grandparent as the “parent”. When the grandparent and grandchild live in the same household we have the seeds of in loco parentis. However, if one or both of the parents also live in that household, it will be tough for a grandparent to show he or she stands in place of the parents.

Why? It may not be enough that grandma or grandpa is at home, taking care of a grandchild while mom or dad is at work or school. It may not be enough that grandma is the one who always feeds the kids’ their breakfast and packs their lunches. If mom or dad perform parental duties alongside grandma and grandpa, achieving in loco parentis standing may be difficult. This is true even when a parent is irresponsible and otherwise lacking in parenting skills.

If you are a grandparent seeking to save your grandchildren by gaining custody of them it is vitally important that you seek out the advice and counsel of a lawyer. The same goes for a thoughtful, conscientious parents who are trying to rear their own children as best they can but find themselves in court, struggling with overly meddlesome grandparents.

If you need a custody lawyer to fight for your children or grandchildren please give me a call at 717-582-0400. Consults are free. I provide legal services to clients in central Pennsylvania, including the counties of Cumberland, Perry, Dauphin, Juniata, York, Franklin, Snyder, and MIfflin.

Sean A. Potter
The Law Office of Sean Potter, PC
15 East Main Street
P.O. Box 121
New Bloomfield, Pennsylvania 17068
Phone: 717.582.0400
Fax:     717.582.0401
email:   info@attorneypotter.com

As parents, we put our children first in our lives. We strive to make our children happy, broaden their opportunities, and lay the foundations for their future happiness and success. Sometimes, our quest to secure our children’s future means taking a better job in a distant locale or moving to a new city or town with a new spouse. Whatever the reason, when a separated parent decides to relocate with his or her children, a Pennsylvania Court of Common Pleas may end up deciding whether or not that relocation occurs.

The law of child custody relocation is found in Chapter 23 of the Pennsylvania Consolidated Statutes, section 5337. ( 23 Pa.C.S. § 5337). Among the principles underlying child custody relocation law is the belief that children should not be moved from place to place (except for a very good reason) and that a move should not have a detrimental impact on the children. The relocation statute establishes, in detail, everything a parent must do before a court will permit a relocation to occur.

In future posts, I will more fully explain just what the law requires from a parent who wishes to relocate with his children. Right now, though, if you have questions about how you can relocate with your children or about how to stop the other parent from moving your children to another city, county, state, or country feel free to contact me at the Law Office of Sean Potter, PC by calling 717-582-0400. I handle family law matters in central Pennsylvania and am happy to offer free consultations. My Perry County office is convenient to Cumberland, Dauphin, Juniata, Franklin, York, Snyder, and surrounding counties.

Sean Potter
Attorney and Counselor at Law
15 East Main St.
P.O. Box 121
New Bloomfield, PA 17068


www.attorneypotter.com

The Flabbiest of Rights?

Okay, failing to exercise your constitutional rights won’t make them flabby. In truth, something far worse could happen: you could end up behind bars. But if your rights could get flabby, it’s your right to remain silent that would surely be among the flabbiest of those basic foundations of American democracy.

The right to remain silent is enshrined in U.S. Constitution’s Fifth Amendment. The actual wording of the amendment does not speak of silence. Rather, the Fifth Amendment guarantees that no American can be required to incriminate himself or herself. Yet, as any lawyer practicing criminal law can tell you, scads of Americans incriminate themselves everyday. It’s not that baton wielding police officers are beating confessions out of everyone who spills the beans on the themselves. In a run-of-the-mill drunk driving case, the arresting officer’s interrogation methods usually amount to simply asking the accused driver if he’d had a drink or two before sliding into the driver’s seat. The officer will usually ask that question shortly after making his initial contact with the soon to be arrested driver. Sometimes the question will come before the driver hears his Miranda rights; sometimes it will come afterwards.

No matter when it comes, though, the typical driver who has, in fact, consumed alcohol before driving will admit to having had a drink or a beer or two or a glass of wine. At that point, it’s a safe bet that an arrest will soon follow. The arrest may occur even when the driver is not intoxicated or feeling any effects of the beer he had two hours ago. At that point, an experienced lawyer can mean the difference between merely having an unpleasant experience or actually ending up convicted of a crime.

Often, the driver who admits he’d had a drink thinks he is helping himself by answering the officer’s question. However, that is rarely, if ever, true. Far from helping himself, the driver has only really helped the police officer make an arrest. Had that driver exercised his Fifth Amendment right to remain silent he may still have found himself under arrest. However, the driver who remains silent won’t have his incriminating words used against him in a court of law.

 

 

 

I’m married. What happens if I die without a will?

Generally, we humans are good planners. We do our best to arrange and structure our lives so we can afford a home, send our children to college, get to work on time each day, enjoy free time, engage in social activities, fulfill our family obligations, and look forward to a comfortable retirement. We journey through life striving to make the most of each day, to dPennsylvania Estate Planningo our best for our children and loved ones. Along the way we accumulate things. Most of us will have a home; a car or two; money in the bank; jewelry; firearms, perhaps; a house full of personal possessions we have acquired over the years, and various investments.

It’s entirely satisfying to know that when we pass from this world, the possessions we worked so hard to acquire will go to those persons or institutions we love or cherish. It is reassuring to know that by taking simple steps now, we can help secure our children’s futures for when we are gone. We can do this of course by creating an estate plan. This estate plan may consist of just a Will or it may take the form of a Trust or it may include a Will and a Trust. A knowledgeable attorney can help devise a plan as simple or as complex as it needs to be to adequately carry out your testamentary wishes.

Unfortunately, many of us never devise that plan. We don’t make that Will or create that Trust. When a person dies without having made a Will or created any other kind of estate plan; we say he or she has died intestate. When a person dies intestate the Commonwealth of Pennsylvania decides what happens to the deceased persons possessions. The Commonwealth decides who gets the coin collection or the antique tractor. The rules, actually, are deceptively simple.

When a married person dies intestate, we look to Title 20 of the Pennsylvania Consolidated States, Section 2102, to determine what the surviving spouse sill inherit. It’s short and to the point so I’ve pasted it below. Before reading the statute, however, consider what should dictate how your worldly possessions are distributed once you are gone. Should it be your own, carefully prepared Last Will and Testament, one which protects and enriches your family’s future, or should it be the Commonwealth of Pennsylvania. If you believe you know best how to provide for your family’s future after you are gone then you must create a Last Will and Testament or employ another legally enforceable estate planning tool.

Feel free to contact my office by phoning 717.582.0400 or by using the contact form below this post. During the free, no obligation consultations I will help you to understand your options and recommend a way forward.


§ 2102.  Share of surviving spouse. 


   The intestate share of a decedent’s surviving spouse is:

   (1) If there is no surviving issue or parent of the decedent, the entire intestate estate.

   (2) If there is no surviving issue of the decedent but he is survived by a parent or parents, the first $ 30,000 plus one-half of the balance of the intestate estate. Notwithstanding the foregoing, in the case of a decedent who died as a result of the terrorist attacks of September 11, 2001, a surviving spouse shall be entitled to 100% of any compensation award paid pursuant to the Air Transportation Safety and System Stabilization Act (Public Law 107-42, 115 Stat. 230).

   (3) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the first $ 30,000 plus one-half of the balance of the intestate estate.

   (4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

   (5) In case of partial intestacy any property received by the surviving spouse under the will shall satisfy pro tanto the $ 30,000 allowance under paragraphs (2) and (3).

Grandparents’ Child Custody Rights in Pennsylvania

I regularly receive visits from caring grandparents who are concerned about the health, safety, and overall well-being of a grandchild. Often, the child’s parents may be battling substance abuse, a mental illness is sometimes involved, or a parent is either soon to be incarcerated or is Imagealready serving time in prison. Fortunately, Pennsylvania law permits certain grandparents to seek sole or primary physical custody of one or more of their grandchildren. These grandparents may seek legal custody of a grandchild, as well.

In general, there must be extraordinary circumstances surrounding the parenting ability of the parents and the health and well-being of the children. Often by the time a grandparent files a custody complaint, the grandchildren have been residing in that grandparent’s home for a lengthy period of time. As a result, the grandparents are performing all the child rearing duties. Essentially, they are acting as parents in place of the child’s birth parents. In situations like this, it can be said the grandparents stand in loco parentis to their grandchildren.

Title 23, Section 5324 of the Pennsylvania Consolidated Statutes (23 Pa.C.S. § 5324)  who stand in loco parentis to their grandchildren to seek any form of physical or legal custody of those grandchildren. Grandparents who lack in loco parentis standing can still pursue any form of physical or legal custody of their grandchildren if they satisfy the statutory criteria.

Below, I have pasted the text of 23 Pa.C.S. § 5324. If you are a concerned grandparent, feel free to contact my office at 717-582-0400 for a free consultation and case evaluation.

23 Pa.C.S. § 5324.  Standing for any form of physical custody or legal custody. 


   The following individuals may file an action under this chapter for any form of physical custody or legal custody:

   (1) A parent of the child.

   (2) A person who stands in loco parentis to the child.

   (3) A grandparent of the child who is not in loco parentis to the child:

      (i) whose relationship with the child began either with the consent of a parent of the child or under a court order;

      (ii) who assumes or is willing to assume responsibility for the child; and

      (iii) when one of the following conditions is met:

      (A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);

      (B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or

      (C) The child has for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

Don’t like the judge’s custody order? Is it worth filing an appeal?

What do you do when your custody hearing does not go your way? What do you when you asked the court for primary physical custody but the judge gave you only partial custody? When your ex asks to

Appeal

Sometimes, the only tool available to fix an incorrect custody decision is an appeal to the Superior Court of Pennsylvania

relocate the children from Cumberland County to LasVegas, Nevada and the judge lets him or her do it, even though you opposed the relocation tooth and nail?

A good first thing to do is to ask your attorney to file a Motion to Reconsider”. The motion should be filed promptly after the order issues. It should cite specific reasons why the judge should reconsider the order he just issued. The chances of success with a motion to reconsider are slim unless the judge really did miss something big.

Beyond the motion to reconsider is an appeal to the Superior Court. Again, your attorney should file the appeal ASAP after the judge issues her order. The appeal must be filed with 30 days of the order; whether or not your attorney as already filed a motion to reconsider. Going the appellate route is not easy. The Superior Court dismisses the vast majority of appeals it reviews.

However, if your attorney believes there is a legitimate, appealable issue that should result in a reversal, then a disappointed parent should seriously considering filing that appeal.

I know child custody appeals can be won because I have recently won 2 custody appeals*. To prepare and file your appeal, you should choose a lawyer who knows the appellate system and is an experienced custody attorney. Because I offer free consultations, I would be happy to discuss your custody matter (whether a possible appeal or something else.)

Feel free to contact me at 717-582-0400. My office address 15 E. Main St., P.O. Box 121, New Bloomfield, PA 17068.  Although my office is located in Perry County, I practice throughout the mid-state region.

*Winning an appeal in the past is no guarantee of future performance.

Totally Sober Yet DUI – Part I

Handcuffs

Even unimpaired drivers can end up cuffed in Pennsylvania

75 Pa.C.S. § 3802(d). That’s Pennsylvania’s law which makes it illegal to drive after using a controlled substance. This section is important for those who use weed because it means Pennsylvania drivers who are totally sober can be stopped, arrested, charged with a controlled substance DUI, convicted, and imprisoned even though he or she was stone cold sober. I pasted the statute at the end of this post so you can read it for yourself. Now, though, I will explain how a sober driver can end up in legal hot water.

Let’s say a driver last smoked 24 hours before getting behind the wheel. He is totally sober, safe to drive, and feels no effects from that long gone spliff. Anyway, off he goes. Only his left rear brake light is out.

Just before he pulls into the parking lot of the building where he works, he notices the red and blue lights in his rear view mirror. He knows he wasn’t speeding, so what could it be? The officer quickly tells him it’s the burnt out brake light. Our driver breathes a sigh of relief.

However, as the officer talks to the driver through the window, he notices an empty Ziploc bag and a lighter sitting in plain view on the front passenger seat. Suddenly, the officer “notices” the odor of cannabis permeating the car. He asks our driver to exit the vehicle.

Our driver, however, was regretting that he hadn’t thrown out the Ziploc from the ham salad sandwich he ate in the car two weeks ago. His thinking and regretting caused him to miss the officer’s request to exit his car. Finally, on the third request, he stepped out. Unfortunately for him, he parked his car on a gravel covered slope. As if on cue, then, he slipped as soon as his feet hit the pavemet. Just a little slip, mind you. He didn’t fall. But the officer had seen enough. The cop created a mental PC list:

  • Delayed response to simple commands
  • Odor of marijuana permeating the vehicle
  • Paraphernalia within reach of the driver (the baggie and lighter)
  • Driver unsteady on his feet

So our officer pops the question: “Just tell me the truth and we’ll both be able to go home a lot sooner. Have you smoked weed recently?”

To which our driver responds “yeah, but it was over 24 hours ago.”

To which our officer responds “I am placing you under arrest for suspicion of driving under the influence of a controlled substance. You have the right….”

Stay tuned for Part II of our tale of innocence and woe. What will happen to our driver? The officer? The taillight?


75 Pa.C.S. § 3802(d)

d)  Controlled substances. –An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

   (1) There is in the individual’s blood any amount of a:

      (i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

      (ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

      (iii) metabolite of a substance under subparagraph (i) or (ii).


Emergency Custody and Special Relief

What do you do when, without your permission, the other parent pulls your child out of his or her school and enrolls him or her in a different school district?

What do you do when you fear for your child’s physical safety and well-being during his stays at the other parent’s residence? For instance, maybe mom’s new boyfriend is violent and abusive? Or, perhaps, dad is losing his struggle with substance abuse and, as a result, leaves a small child unattended while he sleeps it off or is out tending his habit?

What do you when the other custodial parent exhibits signs of mental illness that call into question his or her ability to adequately parent the child, to meet the child’s basic needs, and to make sound parenting decisions?

What do you when the other custodial parent simply fails to return your child to you at the end of his or her period of custody?

In Pennsylvania, the answer to these questions may come in the form of a Petition for Special Relief; sometimes referred to as an Emergency Petition. Pennsylvania Rule of Civil Procedure No. 1915.13 provides parents with the ability to quickly obtain an order which can do any or all of the following:

  • award the petitioning parent temporary sole physical custody of the subject child; or,
  • prohibit a parent from relocating the child to a new school district or even a new county or state; or
  • direct that a parent undergo a psychological or mental health evaluation to determine that parent’s fitness and ability to effectively rear his or her child.

A Petition for Special Relief can be a useful tool for obtaining other kinds of relief, as well. It is important, though, that you make a decision about whether or not file a Petition for Special Relief with the advice and counsel of an experienced custody attorney. A wrongly filed Petition can damage your entire custody case. On the other hand, not filing a Special Relief Petition when you should file one could leave your child in a vulnerable position. Careful consideration of all available options is necessary.

One of the ground rules for filing a Petition for Special Relief is that there must already be a custody case pending or, if there is none, that the Petition for Special Relief be filed at the same time as the initial Custody Complaint.

If you would like to discuss your custody case with me, I would be happy to do so. The first consultation is free and there is no obligation. I serve parents in central Pennsylvania; including the counties of Cumberland, Perry, Dauphin, Juniata, to name a few. Feel free to call 717-582-0400 to arrange for your free consultation.

Sean Potter
Attorney and Counselor at Law

Pennsylvania DUI Defense: Constitutional Rights of the Accused

Arrested for DUI in Pennsylvania? You may have defenses based on the United States Constitution.  For instance, evidence of a driver’s blood alcohol content (BAC) is usually central to the prosecution’s case. As an attorney who defends clients charged with DUI, one of the first questions I investigate is whether or not police obtained that blood evidence as the result of  an illegal detention or arrest.

An unlawful detention may be one based on a state trooper’s or police officer’s “hunch” about a suspicious vehicle. If a police officer wants to perform a traffic stop, a hunch is not a valid reason. At the very least, the officer must have a reasonable suspicion that a driver is operating his vehicle in violation the motor vehicle code. He or she must be able to say and describe what prompted the stop. If not, the stop may have been unlawful and may lead to suppression of the evidence obtained as a result of that illegal stop.

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If you have been charged with DUI in the  Cumberland, Perry, Dauphin, Juniata, or other counties in central Pennsylvania, I invite you to contact my office at 717-582-0400 to arrange a free consultation with me. At the consultation I will assess your case and attempt to answer your questions.

Sean Potter
Law Office of Sean Potter, PC
15 East Main Street
P.O. Box 121
New Bloomfield, PA 17068
Phone: 717.582.0400
Fax:      717.582.0401
www.attorneypotter.com

Free Consultations at the Law Office of Sean Potter, PC

Free Consultations at the Law Office of Sean Potter, PC

I am happy to offer first-time visitors a free consultation. Simply phone 717-582-0400 to make an appointment. Whether you are concerned about a child custody or other family law matter; a will or probate issue; a DUI or criminal issue; or a variety of other legal matters, I would be happy to assess your situation and provide an overview of the legal process unique to your situation. As always, there is no obligation.

The Law Office of Sean Potter, PC is located at 15 East Main Street, New Bloomfield PA, 17068. It’s easily accessible from the West Shore via US 22/322 or US 11/15. From Cumberland County, Wertzville Road and SR34 provide convenient access. For directions, click the photograph of my office building.

Hope to see you soon.

Sean Potter
Attorney and Counselor at Law