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Legal News & Notes
January 2012
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Berman & Asbel, LLP
20 W Third Street
Media, Pennsylvania 19063
610-565-9696
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Greetings!
 | | Stephen Asbel (L) & Bernard Berman |
Welcome to our newsletter. We want to bring you some interesting and useful news and information on current legal developments and about our law practice.
However, we do not intend to give legal advice about your situation and you should not rely on this newsletter as legal advice. If you have a legal matter you would like to discuss, please contact our firm directly so you can discuss your matter directly with us.
We are proud to serve the legal needs of individuals, families and small businesses. Contact us to discuss what we can do for you.
Thanks for reading and have a great day. Sincerely, Bernard BermanStephen Asbel
Berman & Asbel, LLP |
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Relocating a PA child?
Divorced/separated parents need consent or court order When parents of children are divorced or separated, custody can be a difficult issue. When the parent who has primary custody wants to move with the child a significant distance, that can create even larger issues. Under Pennsylvania's new child custody law, a child can only be relocated with consent of the other parent or any other person who has custodial rights to the child; or court approval. The need for consent or court approval also arises when the distantly located non-custodial parent seeks to have primary physical custody of the children in his/her distant location.
Section 5322 of Pennsylvania's Domestic Relations code defines a relocation as "a change in a residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights." Section 5337 states the procedure for relocation.
The parent who wants to relocate the child must give at least 60 days written notice (unless there is good reason why 60 days notice is not possible). The non-relocating parent has 30 days to object, or cannot contest the petition to relocate. The notice must include the physical and mailing address of the new residence, who will be living in the new residence, the reasons for the relocation, a proposed revised custody schedule, and any other relevant information.
The notice must also include a form in which the non-relocating parent can indicate whether he or she consents or objects to the relocation.
If the non-relocating party consents or does not respond with an objection within 30 days, then the relocating parent must file a petition to confirm the relocation. The court is supposed to act on such a petition in an expedited manner so that relocations to which there are no objections can move forward.
If there is an objection to the relocation or to the proposed schedule, then the court must hold a hearing on the matter. Such hearings should be expedited to the extent possible. In deciding on whether to allow the relocation, the court must consider these factors:
(1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party's household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.
Parents seeking to relocate a child who fail to follow the rules can suffer severe consequences. Failure to provide the proper notice can be grounds for the court to deny the relocation, order that custody be given to the non-relocating parent and ordering payment of attorney fees.
In short, a divorced or separated parent who wants to relocate a child must plan ahead and follow the statutory procedure or risk severe consequences.
For more information on relocating a child in a custody case, click here to visit our website.
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Paralegal Spotlight
Denise Smith has been a paralegal at Berman & Asbel, LLP for 14 years. Denise is often the first person with whom clients will have contact and remains in contact with clients as their cases move forward. Denise assists our attorneys in all of the types of cases our firm handles including family law, estate matters and Social Security disability cases.
Denise has developed many contacts in courthouses, medical offices and other offices and she always goes the extra mile to obtain documents, deal with other offices and whatever else is required to move clients' cases forward.
Denise is also a notary public so she is involved with all of signings of wills, powers of attorney and other estate planning documents that clients sign here.
Denise is a lifelong resident of Delaware County where she lives with her husband, Jim. They have three children and two grandchildren. She holds an Associates degree from Harcum College.
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CA Gay Marriage Ban Unconstitutional Court Rules
Same-sex weddings not likely right away, no impact in Pennsylvania yet
 In a much anticipated ruling, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that California's Proposition 8 which banned same-sex marriage in that state violates the United States Constitution. The decision in the case of Perry v. Brown, affirms the decision of the trial judge finding that the adoption of a state constitutional amendment banning same-sex marriage violated the federal constitution. The appeal court's ruling is actually a narrow decision. It does not go so far as to state that same-sex marriage should be legalized nationwide. Rather, the court analyzed the history of how same-sex marriage had become legal in California in the first place - a process that culminated in a California Supreme Court decision which held that under California's constitution, same-sex couples had the same right to marry as heterosexual couples. For a time, same-sex couples could legally marry. Then in 2008, a voter initiative, Proposition 8, was passed in an election by a narrow majority. Proposition 8 amended California's constitution to explicitly ban same-sex marriage by defining marriage as only being a union of a man and woman. Several couples affected by the law filed a lawsuit in federal court. The plaintiffs won at trial and the backers of Proposition 8 appealed.
The federal court noted that California law guaranteed numerous other rights, many with financial implications, to same-sex couples, and found that the sole purpose of Proposition 8 was to deny to same-sex couples the right to acquire the status of being married. The federal appeals court found that to take away a fundamental right such as marriage from a specific, politically disfavored group that had previously existed under the California constitution violated the 14th amendment of the United States Constitution. To quote the opinion, Proposition 8 "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."
This decision will not impact Pennsylvania residents right away. This decision is about the validity of a state law in another state and will not change the fact that same-sex marriage is not recognized in Pennsylvania. This case also has no impact on the federal Defense of Marriage Act (DOMA) which bars federal recognition of same-sex marriages entered in states that do recognize them. That issue is pending in other court cases. However, if this decision stands or is upheld on further appeal, it could be an important precedent to block a state from banning same-sex marriage after that state's courts have found such a right to exist under that state's constitution or after a state legislature has previously enacted that right. Thus, for example, if the Pennsylvania courts were to rule in the future that same-sex couples have the right marry under Pennsylvania's constitution, the Perry decision could mean that the state constitution could not be amended to take that right away.
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| About Our Law Firm
Berman & Asbel, LLP
20 W Third Street
Media, Pennsylvania 19063
Berman & Asbel, LLP
610-565-9696
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Disclaimer:
The material appearing in this newsletter is for informational purposes only, and is not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information provided herein is intended only as general information, which may or may not reflect the most current developments. Although these materials may be prepared by professionals, they should not be used as a substitute for professional services. If legal or other professional advice is required, the service of a professional should be sought.
The opinions or viewpoints expressed herein do not necessarily reflect those of Berman & Asbel, LLP or any attorney in the firm. Any links to other websites are not intended to be referrals or endorsements of these sites. The links provided are maintained by the respective organizations, and they are solely responsible for the content of their own sites.
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