All posts by Pelger Law

Can we use a self-prepared custody agreement?

Q: If using self prepared custody agreement, signed by both parties & notarized, do I file anything with Allegheny County courts? I will have sole physical custody of my son & both his father and I will sign the document and have a PA notary witness it. I just want to make sure he can’t take our son without permission since his “family” and friends are out of state.

A: This is highly inadvisable. This “self prepared custody agreement” will not be worth the paper it is written on if there is a disagreement over custody. Only a custody order of court with a judge’s signature on it which states who between the warring parents has physical custody and who has visitation, and when and where such visitation occurs, is binding and can be legally enforced. Without a custody order, either parent can move the children out of state or even out of the country. I would take your agreement to a lawyer who can then turn it into a Consent Order of Custody, and present it to a judge for signing. If you cannot afford a lawyer, you may be able to do this through Allegheny County’s pro se court.

 

Mom deeded farm to my siblings.

Q: My mom may be a vulnerable adult. In May of 2013 she had mild stroke. I found out that around that time my sister and brother bought her farm in Washington County by deed from her for 1000 dollars per month. The value of the land was once appraised at $237,000.00 dollars and is now paying $7,500.00 per month in gas rights, which I didn’t know until now. Does this sound right?

A: There is not enough information here to give you any reliable answer. I assume you are alleging that your mother was not competent enough at the time she deeded the farm to your siblings at such a low price. If so, if you can prove that your mother was incompetent when she sold, you may have a remedy in that you can go to court on a petition to rescind or nullify the deed. You would need a lawyer for this procedure. In order to prove your mother was incompetent at the time she signed the deed, you would need medical proof to back your claim up. This could be accomplished by an opinion of her doctor. I would pay a lawyer a retainer to look at this situation.

Underage drinking, again. Any advice?

Q:        Can I get a third underage drinking charge changed to disorderly conduct?

A:         With this being your third underage drinking case, you are unlikely to get a break. Generally, with the first violation of 18 Pa. C.S.A. 6308, you can receive a 90 driver’s license suspension, a one-year suspension with the second offense and a two-year suspension with the third. I don’t foresee the police cutting you such a break and I wouldn’t count on it. I would hire an attorney to see if you have a defense which may lead to a dismissal or force the police to offer such a deal you are looking for.

Underage drinking, again. Any advice?

Q:        Can I get a third underage drinking charge changed to disorderly conduct?

A:         With this being your third underage drinking case, you are unlikely to get a break. Generally, with the first violation of 18 Pa. C.S.A. 6308, you can receive a 90 driver’s license suspension, a one-year suspension with the second offense and a two-year suspension with the third. I don’t foresee the police cutting you such a break and I wouldn’t count on it. I would hire an attorney to see if you have a defense which may lead to a dismissal or force the police to offer such a deal you are looking for.

What options do I have with my terminally ill grandmother?

Q: What options do I have to ensure my terminally ill grandmother is receiving the best possible care during the end stage of her life. My grandmother is under hospice and living at my Uncles house in South East Florida. I am in PA. My mother was living there up until this week assisting the Hospice care team with the care of my grandmother. Not certain of the details but according to my mother, my uncle was violent with her and called the police to have my mother removed from the home. My Uncle claims to have POA over my grandmother although I have no idea if this is true or not. My mother claims he does not. I do not believe my grandmother has been deemed incapacitated, although again I have no way of finding out. I do know that she is of sound mind, but she is very weak and highly immobile as we have spoken. I am concerned I will not be able to see my Grandmother before she passes and I am really concerned about her quality of life.

A: This is more of a family dynamic problem than a legal problem. I would highly suggest trying to talk to your uncle and express your concerns. You may want to call the Hospice team and see if they will help convey your concern, but don’t count on them wanting to get involved in a family dispute. If you have to go legal, you can call the department of aging or social services agency in that county and see if they do home visits for the elderly. You can also seek a lawyer down there to advise you on what services are available and perhaps on what legal actions he can take such as a letter to your uncle expressing your concerns and requesting a copy of the POA. He can also advise you on the law of guardianships in Florida.

I received a civil claim letter demanding 180 dollars. Do I have to pay it?

Q:I am 16 years old. I was caught shoplifting 30 dollars worth of merchandise. I was detained until someone came to pick me up, though no one came so they released me. No police were involved. I had to sign 2 or 3 papers, I was so nervous I didn’t read what I signed. They took down my info including my social security number. Yesterday, I received a civil claim letter demanding 180 dollars. Do I have to pay it? What happens if I don’t? I don’t have the money too.

A: These civil demands are generally from some out of town law firm who will not sue you in your local court over a $150 or $200 demand. Most attorneys advise to ignore them. However, there have been instances in which I had to be creative in persuading the store employee and DA into dropping the charges. In those situations, I used payment of the civil demand along with other things I had my client do before the hearing, as a justification for a dismissal. Payment of the civil demand, although not necessary, was one more positive factor weighing in favor of my client when I was able to convince the judge to dismiss the charges. I would say, do not rush to pay it and seek the advice of an attorney before doing so. The attorney can also advise you as to whether your case should be in juvenile court or not.

Is this Codicil legal?

Q: What is the probability of winning a contest to a codocil signed 2 days prior to death of a terminally ill cancer patient who is heavily medicated?  I was unaware that she was terminally ill and only found out from my Aunt Kathy (my mom’s sister) on Friday Sept. 27th. At that time my mother was being sent home from the hospital to die. I learned that she had liver cancer and a tumor in her lungs. She was given days to live. In May of 2013, my mom called me to let me know that she was working on her will and she needed some information from me. I thought nothing of this call as my husband’s parents and my stepmom and dad had also been making these arrangements. It seemed perfectly natural. She told me that Morgan (my daughter) and I were her primary beneficiaries and she told me that I would be the executor to her estate. I have a copy of my mother’s original will dated May 15th, 2013, that outlines pretty much exactly what I expected. You will also find a codicil dated September 27th, 2013 leaving her house, all contents of the house and car to Juanita Johnson. It also removes me as executor of her estate

A: This is a case that you really need to review all of the facts with an attorney. First the attorney can look at the Codicil to see if it is legally binding. Codicils are still permitted but must be executed with the same formality as a will-at least signed at the end by the testator. With the invention of word processors, hardly anyone, especially attorneys, draft Codicils anymore, which leads me to question who drafted it, and it’s legality. The attorney can also help you and advise you on how to gather information as to your mother’s state of mind at the time she executed this document. This can come from her doctor, hospital staff or other witnesses.

PAROLE VIOLATION-WILL I MAKE BOND?

Q: I violated my parole in PA can I get out on bond?

A: It is hard to tell what you are asking without more information. I will assume you are on parole and not probation, as there is a difference. Normally, you will have a Gagnon I hearing to determine if you should be held in jail pending a final hearing on whether or not you violated your parole, which is called a Gagnon II. If you are under jurisdiction of the PA Board of Probation and Parole, generally, your penalty will be more harsh and predictable. If you are still under jurisdiction of the judge who sentenced you, you may, may, have more flexibility in having an attorney petition the judge for relief such as alternative housing or electronic home monitoring. There is no bond with probation or parole violations. The way to get out of jail is to have either the PA Board of Probation and Parole, or the judge who sentenced you, whichever has jurisdiction, to grant you relief. This is normally done by having an attorney file a petition requesting such relief. Generally, filing such a motion with the PABPP is not worth it.

Can my step children inherit from me equally as my children?

Q: In my Will I have included both my children and my step children and I called them all “my children”. Is it permissible to include both natural children and step children as children in my will without further specifying? My intent is to treat them all equally.

A: As long as you make this clear in your will, they will inherit equally. You could state something specific in paragraph like, “It is my intent for the purposes of this my Last Will and Testament, that my step-children inherit from my estate as if they were my natural children.”

CAN A MINOR BE IDENTIFIED ON A FACIAL HAIR DESCRIPTION ONLY?

Q: Can a minor get convicted far assault and robbery because someone was robbed and gave police a description of just facial hair and height. And they picked up person fitting that description nothing else and because they had a charge in the pass the same.

A: While it is possible to be arrested on a weak or somewhat ambiguous identification provided to police, it is difficult to convict on a weak or ambiguous identification. If the police were on the fence about arresting him, the fact that he has priors may have give them and added reason to do so. This is not fair but it in reality, it happens. It would be important to have an attorney pin down the identification on the record at the preliminary hearing. It is crucial that he have an attorney represent him at every stage of the prosecution.