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Archive for the tag “court”

Stepparents Stepping Up to Pay Child Support

It goes without saying that noncustodial parents are liable for child support, but the law is still developing as to whether other people in parental roles—namely stepparents—would be liable as well. The recent matter of A.S. v. I.S. , 130 A.3d. 763 (Pa.2015), which the court believed was of first impression, has helped clarify the law on the subject.

In A.S., when the mother and the stepfather married, mother already had children from a previous relationship. During the course of their marriage, the stepfather developed a loving relationship with the children. Unfortunately, the marriage between the mother and stepfather broke down and was eventually dissolved in divorce.

Upon the separation of the parties, the stepfather immediately, and aggressively, pursued custody of the children. After extensive and protracted custody litigation, including a full trial, the court ruled that the stepfather stood in loco parentis to the children and, as a result, granted him shared legal and physical custody of the children on alternating weeks.

Once the stepfather was awarded custody, the mother took the opportunity to pursue him for child support for the children for whom he fought so hard to obtain custody of. In response, the stepfather argued that he ought not be liable for support because he is not the biological father, who incidentally is still alive and available to pursue for child support instead. The child support master, trial judge, and Superior Court all ruled in favor of the stepfather, in essence because he is not liable for support as he is not the biological father and merely provided the children with love and care. As a result, the mother appealed the matter to the Pennsylvania Supreme Court.

After a review of the above facts, the court surveyed the law, starting with the definition of “parent.” Unfortunately, the child support statute does not define “parent,” which led the parties to suggest using the Child Protective Services and Domestic Relations Code as a guide. The court rejected these suggestions, and observed that a modern “parent” encompasses more than simply biology. Instead, the court looks to see if a nonbiological parent “has taken affirmative steps to act as a legal parent so that he or she should be treated as a legal parent.”

The court noted that there is established precedent for a stepparent who holds a child out as his own legal child to have liability to pay child support for that child. In addition, there is also some precedent for finding a support obligation for someone who took affirmative steps to act as a parent.

Taking a broader view, the court explained that none of the factors identified above: standing in loco parentis, taking affirmative steps to act as a legal parent, and holding children out as one’s own are, taken alone, is sufficient to find someone liable for child support of a non-biological child. Furthermore, the court ruled that not even supporting the children during the marriage and acquiring visitation are necessarily determinative in finding someone liable for support.

Taking all of the above under consideration and applying it to the instant matter, the court found that stepfather did far more than take “affirmative steps,” but engaged in a—in the court’s words—”relentless pursuit” of the custody of the children. The court observed that “stepfather … haled a fit parent into court repeatedly litigating to achieve the same legal and physical custodial rights as would naturally accrue to any biological parent.” So, in the court’s view, the stepfather’s actions far exceeded merely wanting to maintain continuing post-separation contact, he wanted—and was granted—the right to become a full parent in every sense of the concept. As a result, stepfather has pursued all of the above: standing in loco parentis, taking affirmative steps to act as a legal parent, holding the children out as one’s own, supporting the children during the marriage, and acquiring post-separation custody.

In light of the fact that the stepfather is as invested in the children as described above, the court ruled that “equity prohibits stepfather from disavowing his parental status to avoid a support obligation to the children he so vigorously sought to parent.”

Therefore, yes, a stepparent can, in some circumstances, be liable for child support, but such liability is evaluated on a case-by-case basis to determine if it can be demonstrated that a certain threshold of involvement with the child at issue is reached (as described above) to warrant entering a child support order.

Originally published in The Legal Intelligencer on January 3, 2017 and can be seen here.

Suit Seeks To Bring Marijuana Under American Indian Religious Freedom Act

This is from religionclause.blogspot.com which you can find here:

Courthouse News Service reported this week that Oklevueha Native American Church leaders James “Flaming Eagle” Mooney and Joy Graves filed suit in an Oregon federal district court on January 15 against the federal government and the U.S. Postal Service.  The suit claims that federal authorities illegally seized 5 ounces of sacramental marijuana mailed to a church member in Ohio last December. Plaintiffs claim that their use of marijuana is protected by the American Indian Religious Freedom Act.  National leaders of the Native American Church do not recognize the Oklevueha branch, nor do they agree with its claims that marijuana (as opposed to peyote) has sacramental use.  In 2013, a Hawaii federal district court rejected a claim under RFRA by Mooney. (See prior posting.) That decision is on appeal.

You can learn more about this issue here.

Yessource: Going for the One Sessions

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

The United Shapes of America: Age Identity

Nathan Rudolph, my friend and fellow parishioner at St. John the Evangelist Anglican Church, has started a comic strip which I have greatly enjoyed and appreciated.  With his permission, I will repost them here after he posts them.  I think my readers will appreciate them as much as I do as they are rather insightful with a snarky edge.  Enjoy!

Here are the links to the previously posted strips:

Here is the latest strip:

https://scontent-iad3-1.xx.fbcdn.net/v/t1.0-9/17426217_1130103737096239_9047801723069866598_n.jpg?oh=3bfa7686e4a93de37e2b80a7c9e4d129&oe=59623616

Yessource: Live in Belgium 10/27/69

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Yessource: Live in Essen 10/9/69

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

The Secret Defense to Debt Collection Matters

Unfortunately, many people find themselves in a situation where they get behind on paying their bills and, due to lack of funds, wind up not paying some of them.  Not paying one’s bills will more often than not result in that debt being sold to a collections agency and that agency suing the debtor for payment (and adding on all kinds of things, like interest, attorney’s fees, penalties and the like to boot).

Selling one’s debt to a collection agency is an important step in the process that directly affects the subsequent lawsuit against the debtor.  Typically, large lenders – especially lenders like credit cards companies – have a fair amount of debtors who stop paying (for whatever reason) on the debt owed to the lender which results in their debts being sent to collections.  When these lenders send debts to collections, they do so by selling the debts to a collection agency.  When they sell the debts to a collection agency, they will often sell the debts in bulk, often for pennies on the dollar.  The transaction benefits the creditor as it gets something for the debts owed without having to pursue costly and time consuming litigation.  The transaction benefits the collection agency because it can pursue collection (including law suit) against a debtor for the full amount despite having bought the debt for far less than its principal value, let alone its value inflated by interest and such.

More often than not, when debts are sold to collection agencies, the initial creditor (e.g.: a credit card company) simply provides an affidavit to the collection agency regarding the amount of the debts and the names of those who owe the debts.  Typically, no other document is supplied by the initial creditor to the collection agency, including any contracts with the debtor or anything bearing the signature on the debtor.  Once the collection agency assumes the debt, it has the right to bring suit against the debtor for the unpaid debt.

The lack of documentation of the contract with the debtor is absolutely key to any defense to the collection of the debt.  If the creditor brings suit against the debtor in the Court of Common Pleas and does not attach the contract between the debtor and the creditor which underlies the alleged debt, the debtor can file objections to the complaint (the document which initiates the law suit) asking for it to be dismissed due to the lack of a contract.  I can say, from personal experience, that such a tactic works as, very often, the collection agency pursing the debtor simply does not have the underlying contractual documentation to prove its case against the debtor.

If the case is brought in small claims court, the creditor does not have the obligation to include a copy of the contract to the complaint, so successfully defending against a collections law suit takes some shrewd strategy.  The lack of documentary evidence is still a huge problem for the creditor, but the small claims aspect of this matter makes the approach different and much trickier.  As the complaint does not require the contract to be appended to it, and the primary place for these matters to be resolved is at a hearing before a judge, the creditor has the procedural advantage.  At the hearing, the collection agency, armed with an affidavit from the initial creditor (as described above), secures almost all of the other evidence it needs to win against the debtor through the debtor’s testimony.

Here is how the hearing would play out: the creditor describes the claim to the judge, which is that the debtor had a contract with a credit card company (for example), he did not pay the debt owed, and is now in collections and all of this is supported by the affidavit.  Now, the affidavit, taken alone, is insufficient to win the case as there is no evidence that the debtor actually contracted with the creditor.  So, at the appropriate time during the trial, the creditor will ask the debtor some questions (i.e.: cross-examination).  These questions will be something like: “did you have a credit card from XYZ company on these dates”?  “Did you make charges on it?” “Did you make all the payments on it?”  “Do you owe $XYZ on the credit card?” And other questions like it.  At the end of the examination, the debtor himself provides all of the evidence against himself that the creditor needs to win the case against him.   As a result, the creditor will win the case against the debtor thanks to the debtor supplying all of the evidence, via his testimony, need by the creditor.

So, how does a debtor avoid the fate of the debtor in the above scenario?  That is where a good lawyer comes into play.

The New Attorney-Client Relationship, Part I

Check out Faye Cohen’s post to her blog Toughlawyerlady!

ToughLawyerLady

In the November 1, 2016 Ethics Forum column in the Pennsylvania Law Weekly written by Samuel C. Stretton, a local lawyer, he laments about how the relationship between attorneys and clients has changed, deteriorated, and become adversarial, over the last 40 to 50 years. I found the article to be fascinating, and I am devoting two blogs to the issues he has raised. This is the first blog.

One could argue that life in general has changed, relationships have changed among friends and co-workers, and that our society has become a more difficult place in which to exist and function.  That change has also impacted the law, and the manner in which participants in the legal system interact with each other.

Some of the comments Mr. Stretton makes follow, and I will provide my thoughts on these comments based on my experiences:

Comment: “The loyalty and trust that used to…

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Yessource: Going for the One Sessions (with Patrick Moraz)

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Yessource: Various Live Cuts from 1976

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts.  I started this series here and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

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