Risk of Harm Hearings and 5329 Certifications in Pennsylvania

Risk of Harm Hearings are intended to Protect Children

Pennsylvania has required a Risk of Harm Hearing to address any relevant criminal history in the background of associated adults for all Child Custody actions for many years now, but recent changes in the law, as handed down by court decisions have changed the rubric for many courts.

What you need to know, however, is that in a new custody action, each party is required to submit a 5329 Criminal History Certification for each adult living in the same home as the child or children in question, and that a Risk of Harm Hearing is required to be held to determine if those enumerated convictions represent a continuing Risk of Harm to the child.

In short, if you are living with someone with a criminal history, particularly for general violence, abuse, domestic violence, or any other sort of potential unpredictable and dangerous action listed under the statute, the court is required by law to see if it is appropriate to intervene and thereby guarantee that person will not harm the child or children in the future. This includes grandmothers and grandfathers, boyfriends, girlfriends, or any other adult living in the home with the child.

While some courts look at this as a pro forma requirement, that such convictions really have no bearing on the case, this isn't always the case. If someone has a 20 year old DUI and they don't drink anymore and have had no more problems since then, perhaps the conviction is irrelevant. But if someone was convicted of assault, has temper problems, has never undergone Anger Management courses, and is regularly expected to babysit a young child, this could be a risk not worth taking.

If a conviction shows a propensity for violence, anger, or abuse, and nothing has been done to address the behavior since then, it might be appropriate to hear full testimony on the matter and determine if it is safe for your child to be around that person. That is the purpose of a 5329 Hearing.

This is why it is incredibly important to know the criminal history of anyone you or your child's other parent are associating with and to disclose this information at the start or the case, or if the living situation changes such that a person like this moves into the home.

For a list of offenses that the court is most interested in and requires disclosure for: Click Here

If you are facing a 5329 Risk of Harm Hearing, and you have a genuine concern for your child, I would be happy to discuss your legal options and the facts surrounding the conviction and its relevance to your case.

Call today at (717) 393-3464 for an appointment.

Good Luck!

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.

Domestic Violence and Protection from Abuse (PFA) in Pennsylvania

The Centers for Disease Control and Prevention state that nearly 3 in 10 women and 1 in 10 men in the United States have experienced rape, physical violence, or stalking by a domestic partner or spouse and report that the violence negatively impacted them in some way (e.g., made them feel fearful or concerned for their safety, resulted in an injury or need for services, or they lost days from work or school). Additionally, such acts resulted in 1,336 deaths in 2010 alone, accounting for 10% of all homicides. 82% of those deaths were women, and 18% were men. The medical care, mental health services, and lost productivity cost of this violence was estimated to be approximately $8.3 billion.

Clearly, Domestic Violence is a significant problem in our society, and sadly, it has becomes worse in recent years with the economic depression facing our nation. People often become stressed over money or housing, and rather than communicating effectively, they resort to infighting and arguing, which leads to violence. Other factors contribute to the problem, including poverty, lack of education, and put simply, relational domineering and abuse. 

There are many organization dedicated to learning about and prevent domestic violence in the United States generally, and specifically, in Pennsylvania. Most notably, the Pennsylvania Coalition Against Domestic Violence is working toward broader education and prevention, especially encouraging state action by legislation. However, while they work on prevention, the courts and legislature have provided help in stopping the abuse and preventing it from happening again. This is where the Protection from Abuse Act No. 206 approved December 19, 1990, 23 Pa.C.S.A. §  6101 et seq. comes into play.

The Protection from Abuse Act, commonly known as the PFAA, makes many of these domestic violence behaviors illegal and punishable under the law. A victim, man or woman, who experiences these abuses, can apply to the court for an order of protection, barring the aggressor from contacting or harming the victim again, and the courts have broad leeway in issuing orders to protect victims of domestic violence. If a perpetrator violates these court orders, they can be arrested and criminal prosecuted under the law.

The way PFA's are handled in Pennsylvania is that a victim appears at the courthouse and files a complaint against the abuser requesting a Protection from Abuse Order from the court. They will usually appear before a judge sometime that same day, and if the facts fall under the statute, the court will issue a Temporary Protective Order. The court will then schedule a hearing within 10 days for you to appear again and argue your case. The court will usually issue a summons for appearance under the PFA Act that the Sheriff will then go and serve on the Defendant at their home or workplace. Sometimes, they will request that a Defendant come to the office to be served directly.

If the Defendant has been successfully served, the judge will then hear the case and see if the Defendant wants time to hire an attorney. If not, the case will go forward. If they do want time to hire their own attorney, the court will continue the hearing.

It is very important that both parties consult with an attorney to understand their rights. These are serious charges that the court will not take lightly. Sometimes, the parties will qualify for free representation through organizations like MidPenn Legal Services or the Public Defender's Office. More often though, those offices will not be able to appear on short notice, and the case will be delayed at least a month, sometimes more. This can add frustration to a complicated process.

However, private attorneys are often immediately available to help negotiate a settlement or to push your case forward.

If you are facing a PFA, you should take it very seriously. If it is granted, it could affect your ability to work, travel, own firearms or hunt, shop, or even live near the victim. Since these requests themselves are often abused in a child custody context to gain an upper hand, it can also affect your ability to share child custody and visitation. You should never go to court unprepared or without representation.

If you are a victim, it is equally important to have an attorney, so they can present the evidence in your case and make sure you get the protection you need to prevent further abuse of you or your children.

Ultimately, PFA's are there to help prevent future abuse and to address incidents of violence in our community. Like any other legal tool, they can be helpful to address your situation, but they are no substitute for education and prevention.

If you are located in or near Lancaster County, Pennsylvania, I would be glad to meet with you for a free consultation (30 minutes) to discuss your legal options related to PFA's and other domestic violence issues. If you hire me, I can also represent you in your PFA hearings and probation followups. 

To schedule a consultation, please call at (717) 393-3464 or e-mail at lancastercountylaw@gmail.com

Good Luck!

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.

Child Custody and Visitation in Pennsylvania

In Pennsylvania, child custody and visitation is a fluid thing. Parents come to me all the time with complaints about the other parent, claiming they have done something against court orders and asking that I hold them accountable. Of course, I will try to do that, however, they often fail to understand that custody and visitation can change, sometimes suddenly (based on the facts of the case) and it is very important to stay on top of contentious cases to ensure that the court doesn't change its mind about the best parent for primary custody.

For example, if the court in Lancaster has ordered a parent to complete an anger management, or even a parenting class, it is essential that the parent obeys all court directives and participates fully in these sort of courses. Even completing the "Focus on Children" seminar by Pressley Ridge in a timely manner is important, and if you fail to do so, you can end up with sanctions from the court.

Additionally, the other parent can request a change in custody every few months if there is a change in circumstances that warrants it. I have seen the court change custody if one parent moves into a bad neighborhood or fails to provide adequate space for the child in their home.

Ultimately, there are many factors involved in a custody or visitation decision, but if you hire an experienced attorney to help you through the process, you significantly increase the chances of a successful outcome, in the best interests of your children.

Good Luck!

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.

What Will Happen to Me?

Potential clients sometimes come to me with a set of facts and ask, "What will happen to me?" It usually sounds something like this:

I got a DUI last year, and now I was arrested for MIP (Minor in Possession) and I was also caught with 4 ounces of marijuana and I was also shoplifting at the time while running a red light and I had an AK-47 in my trunk that I knew was stolen when I bought it off some guy in an alley who also sold me high explosives, which I only use for recreational purposes. And by the way, I think I have 203 outstanding parking tickets from 2005. What will happen to me?

These sort of facts make an attorney's head spin, because it shows a pattern of behavior completely out-of-control and beyond the skill of most attorneys to handle. This one statement quite literally contains over 20 separate criminal charges of varying degrees that, if charged, could land someone in jail for the rest of their nature life. So, you can see how it is difficult to answer such a question.

However, an honest attorney will make an attempt, and the answer should be, "I don't know; it depends."

Most people understand that in situations like this they are in big trouble. They don't really know how bad it is, but they want a worse-case-scenario to prepare themselves for the inevitable jail time. An attorney could count up all the possible charges and assume that convictions will result and give a number, say 30 years, and $250,000 in fines. But, that wouldn't be telling the whole picture.

The fact is that hiring an attorney is the best way to address a handful of charges like this and simply knowing how much possible time you are facing doesn't help that much. If you are facing a real legal mess, an attorney can help sort things out and break it down to the least common denominator.

For instance, if you committed a bunch of property crimes because you were intoxicated or high on drugs, but you didn't really hurt anyone that requires you to go to prison for years on end, they might be able to work a deal with the DA for a guilty plea on one charge, a dismissal on the rest, and a mandatory stint in drug rehabilitation. District Attorneys will often work these sort of deals out to prevent the time and effort required to convict you on multiple charges.

Working a deal like this is often impossible on your own though, so it is always best to hire an experienced and reputable criminal defense attorney to help you with these issues.

And so, while it is important to understand the sort of time and penalty you might face from charges pending against you, that isn't necessarily the big picture of what you will ultimately face. Unless you've gone on a rampage and killed or hurt people, the list of charges won't always mean you will face the full penalty of the law, since the judicial system prefers to help people rehabilitate in the end.

Good Luck!

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.

The Lost Art of the Demand Letter

1

Gathering Information

Before writing your demand letter, it is important first to gather your thoughts and consider how you have been wronged. Attorneys will remember the basic elements of a cause of action from their law school studies. Pro per clients (who represent themselves) may not understand the elements of their action and their significance, but it is still important to pause and make a list of the events and actions that have occurred in your case. For instance, enumerate all of the correspondence and interaction that you had with the other party that resulted in your dispute. Note what was said, by whom, and in what context. Once you have the facts settled in your mind, you can proceed to the next step. Write an introduction to your letter stating your reason for writing, e.g. "I am writing this letter to explain the circumstances of our interaction and why I feel the need for reimbursement." Take a neutral tone and avoid antagonistic statements like "Give me my money, you bum!"

2

Voicing Your Grievances

Next lay out the reasons you feel justify your position. For instance: 1) I offered to purchase your car for $5000 and paid you a $500 deposit. 2) You accepted my offer and told me you would deliver the car to me on Friday. 3) You sold the car to Fred on Thursday and never delivered it to me as promised. 4) You refused to return my purchase deposit when I asked for it back. It is important to explain why it is necessary to reach the conclusion that you have. Remember that it is important not to jump to a legal conclusion without supporting it with facts and viewpoints, e.g. "By refusing to return my money, you breached our contract and broke the law."

3

Making Your Demands

You also need to clearly state your demands so the other party understand what you want, e.g. "Accordingly, I want you to return my $500 deposit."

4

Allowing for Compromise

Sometimes, legal issues can be kept out of court if you make an offer of compromise. Court is expensive and most times you really don't want to have to go to court. After all, you might lose. Try making an offer to the other party that gives them an out without necessarily admitting fault, e.g. "I understand that you are in a tough financial situation and may not have my money available to return, but I am willing to take something else in return. I really liked the hubcaps you also advertised for sale with the car. If they are still available, I will gladly take them instead."

5

Standing Firm

Remember though that this is a "Demand" Letter. As I said, don't be rude, but know when to stand firm. Don't give too much wiggle room for the other party if you truly feel they are wrong and trying to take advantage of you. Stick to the facts and make your position clear. If they violated the law, call them on it. Tell them this is their opportunity to fix the problem and make it go away before the court gets involved and they lost their shirt. "Please understand that what you did was a violation of the Criminal Code section 3456.56 (stealing earnest money deposits). While I wish to resolve this matter amicably, I will sue you in small claims court if you do not work with me. If this matter goes to court, you will most certainly lose."

6

Giving Notice

Don't forget the notice at the end of the letter! A key component to the demand letter is letting the other party know that they have a finite amount of time to respond before you resort to legal action. This is crucial in many jurisdictions! Some require 30 days notice, some 60, some 90 days! Look up your statutes to see what is required. Make sure you mail the letter Certified Mail with a Return Receipt Request so that you can prove that the other party received your letter before you went to court.

7

Taking Action

Now that you've sent your letter, be ready to follow through on your demands. Remember, don't be afraid. Most people count on other folks' hesitance to go to court and may ignore your letter entirely, but that isn't the point of the demand letter. Rather, you are mostly showing the court that you tried reasonably to solve your problems before going to court and gave the other guy every notice and opportunity to work with you beforehand. You were the reasonable person here, and now the court needs to help you deal with the unreasonable party, your opponent, who by now will look quite foolish.

Additional Resources:

Try these sites for additional information and sample demand letters:
http://www.ehow.com/how_2054253_write-demand-letter-instead-hiring.html 
http://www.nolo.com/legal-encyclopedia/write-winning-demand-letter-29858.html

Good luck!

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.

Deep Roots and New Beginnings

Legend has it that my family has been in Pennsylvania a very long time. In fact, my 7th Great-Grand Uncle was admitted to the Bar here in 1750, when he started his own law practice. 263 years later, I too am starting a new law firm in Lancaster County, the Law Office of Jacob R. Lauser. While I doubt I will ever sign a Declaration of Independence like George Ross did, I am looking forward to helping clients across Central Pennsylvania with their Family Law, Estate Planning, and Property matters and to continuing the legacy of community service and leadership my family established here so long ago.

If you need help with your Divorce Defense & Family Law matter, Estate Planning issues, or Real Property questions, I would be glad to help you find answers and resolve your legal problems quickly and efficiently.

I will also be posting answers to some of the most common legal questions I encounter in my practice to explain the process and law for my readers.

Thank you for your support and encouragement.

- Jacob R. Lauser

The Law Office of Jacob R. Lauser

Innovative Solutions for Your Legal Needs

Jacob R. Lauser, Esq.
Atty. (PA, DC, NE, MN)

53 N. Duke Street, Suite 304

Lancaster, PA 17602-2842

T: (717) 393-3464, F: (717) 393-3162

lancastercountylaw@gmail.com

www.lancastercountylaw.com

Disclaimer: This post is meant for informational purposes only and should not be construed as legal advice within the bounds of a professional relationship, and does not create an attorney-client relationship. It is always best to seek counsel with a competent attorney licensed in your state, experienced in your area of issue, and fully informed about the facts of your case.