The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Drone Registration or License Required?

Is drone registration required for the drone I got for Christmas? Do I need a license to fly a drone?

Unmanned aircraft systems (UAS), or drones as they are often called, are increasingly available online and on store shelves. Prospective operators—from consumers to businesses—want to fly and fly safely, but many don’t realize that, just because you can easily acquire a UAS, doesn’t mean you can fly it anywhere, or for any purpose.

Drones weighing more than 0.55 pounds (250 grams)[1] but less than 55 pounds must be registered.  In order to complete drone registration you must be at least 13 years old, and a U.S. Citizen or lawful permanent resident.[2]  Registration can be done online at http://www.faa.gov/uas/registration/ , costs $5.00 and lasts three years.  If your drone weighs more than 55 pounds (takeoff weight with all attachments) you must use a paper registration system.  Forms are available at: http://www.faa.gov/licenses_certificates/aircraft_certification/aircraft_registry/

Your FAA drone registration number must be place on all drones before they are flown outside (even on your own property), and the registration may help you get your drone back if it gets lost.  Drones flown for recreational use must remain within the visual line-of-sight (VLOS) of the remote pilot in command or a visual observer, and they may be flown only in daylight, within 30 minutes of official sunrise or sunset.

So far “flying licenses” or pilot certifications are not required to fly a hobby drone.  Penalties for flying unregistered drones or using drones for commercial purposes may result in regulatory and criminal sanctions. The FAA may assess civil penalties up to $27,500. Criminal penalties include fines of up to $250,000 and/or imprisonment for up to three years.

If you have a question about registering your unmanned aircraft system (drone) call the experienced lawyers at the Mazza Law Group, P.C. today.

[1] Not sure how much 250 grams actually is?  Ask your friendly neighborhood cook (or drug dealer).  From the cooks: a cup of bread flour is about 150 grams, a cup of table sugar is about 200 grams.  So, the answer is not much.  If you bought a hobby drone for less than $100, it probably weighs less than .55 lbs.  Check the box or weigh it before you fly!

[2] If you are not a U.S. Citizen or lawful permanent resident consult with one of the immigration lawyers at the Mazza Law Group, P.C. for further information about living in or visiting the United States.

Surveillance Video requested under RTKL denied

The Commonwealth Court recently ruled on a right-to-know request for a casino’s surveillance video that captured a two-vehicle collision. In Pennsylvania State Police v. Kim, the Court found that the video collected by Pennsylvania State Police was a part of a criminal investigation and protected under the Criminal History Record Information Act.

 

The Court’s decision discussed a recent case argued in the Supreme Court of Pennsylvania by Helen Stolinas of The Mazza Law Group, P.C.  In Pennsylvania State Police v. Grove, the issue involved surveillance video from vehicle dash cams installed in police vehicles.  A full discussion on this issue can be found on our blog, Lawyer Argues Dashcam Case.  We are still waiting the Supreme Court’s decision in that case.

The Commonwealth Court in Kim, found the case to be distinguishable from Grove because the videos were recorded by private parties (specifically a casino) and retrieved by police as a part of an investigation.  In Grove, the surveillance video captured police non-investigative activities or daily activities which the Court found was not protected under the Criminal History Information Act.  The issues presented in both cases involved Pennsylvania’s Right-to-Know Law which gives the public the right to request information relating to the business of public agencies. This fairly new law has been a highly contested issue because of the resources involved in complying with the request as well as the public’s interest and rights.

You or someone you know may be interested in gathering surveillance video  that is a part of a criminal investigation. Motives for reviewing the surveillance videos can vary from direct involvement in the case to the public’s right-to-know the conduct of government agencies. A lawyer at the Mazza Law Group can help decide the best approach in helping you address these complex issues.  Call us today.

Grandparent Custody Act: Supreme Court rules part unconstitutional

The most important, first step is to learn whether you have “standing” to request grandparent custody.  “Standing” means the legal right to ask the court for custody. Informally, think of it as “getting your foot in the door” to get “a bite at the apple.”   It is only possible to seek custody of grandchildren under certain circumstances, which are outlined in 23 Pa.C.S.5324. In general, a grandparent must be taking care of the child (in loco parentis) or desire be the grandchild’s primary custodian due to the parents’ failure or inability to perform their duties.  The final step is always to prove that it is in the child’s best interest to live primarily with a grandparent. In an article that we previously published entitled “Do you have custody of your grandchild?” we explained the legal steps that you need to take to get custody of your grandchildren.

The law also describes when a grandparent has “standing” to ask for “partial custody,” or visitation, with a grandchild.  23 Pa. C.S.A. 5325.  The law as currently written says that a grandparent can request a court-ordered visitation schedule under certain conditions, including:

1)  where a parent is deceased;

2)  where the parents have been separated for at least six months or have initiated and continued divorce proceedings (emphasis added); or

3) where the child lived with the grandparent for at least twelve consecutive months and is removed from the grandparent’s home by a parent.

 

Now, however, the first clause of paragraph two has been disallowed by the Pennsylvania Supreme Court.  In the case of D.P. v. G.J.P., 25 WAP 2015, decided September 9, 2016, the Court ruled that it is unconstitutional to allow grandparents to seek partial custody solely because the parents “have been separated for at least six months.”

The parents in the D.P v. G.J.P. case won the legal argument that their separation should not be enough to give the grandparents “standing” to ask for partial custody. The Supreme Court agreed with the parents and said this section of the law violated parents’ fundamental, constitutional rights and cannot be used to ask the Court to award the grandparents’ custody. The entire opinion can be read here:

http://www.pacourts.us/assets/opinions/Supreme/out/J-53-2016mo-rev1.pdf?cb=2

Under the Fourteenth Amendment, parents have what the courts call a “fundamental liberty interest in raising their children as they see fit.” This includes the right to decide whether the grandparents should have regular visitation with their children.  It is assumed that parents act in their children’s best interests, and this fact does not change when parents decide to separate.

Courts in Pennsylvania may no longer intervene to order grandparent visitation just because the parents have been separated for six months. For now, unless and until the law is re-written, it is still possible for a grandparent to seek visitation rights through the Court.  It can only happen under paragraphs one and three of the law, when there is a deceased parent, or when the grandparents have had custody for a year and the child returned to the parent’s care. It is now unconstitutional to infringe on a parent’s rights and give a grandparent partial custody solely because of the breakup of the parents.

If you are a parent or a grandparent who wants to know more about the Grandparent Custody Act and how the Constitution can affect family law, talk to an attorney at the Mazza Law Group for legal information and advice.

 

Citizenship by Naturalization

Back in 1999, my brother and I were fortunate to be present when my father, an immigrant from Croatia, took the oath of citizenship in a naturalization ceremony in Philadelphia.  Although he had been a Lawful Permanent Resident (LPR) for decades, he was finally sworn in among immigrants from all over the world.  He immediately registered to vote and applied for a US passport, and now enjoys all the privileges of US citizenship.   While my father’s journey to become a lawful permanent resident happened years before I was born, I became interested in becoming an Immigration Lawyer to help others attain legal status and citizenship in the US.

In order to be eligible to naturalize, an individual must be 18 years of age or older (children can often naturalize when their parents become citizens); have been an LPR residing in the United States for at least five years (three years for a spouse of a citizen); have a basic knowledge of US government; be of good moral character; have a period of continuous residence in the United States, and be able to read, write and speak basic English.  There are exceptions to some of these requirements.  An Immigration Lawyer can discuss these with you.

Assuming eligibility, once an individual is an LPR, what are the steps to becoming a citizen?  First, you must file form N-400 with USCIS (United States Citizenship and Immigration Services).  You must also pay the filing fee of $595, plus biometrics fee of $85, but the application fee will be increasing to $640 as of December 23, 2016.

Once your application is processed, you will be sent an appointment for an interview, where you will talk to an agent, take a civics and an English test, and, depending on your file and results of your test, you may take the oath of citizenship that day!

It may be advisable to speak to a lawyer before applying for citizenship. For example, if you have been charged with a crime, or have any issue with unlawful presence in the country, you should know that your immigration status will be reviewed carefully when you apply for citizenship, and any such issues that come to the attention of immigration officials could lead to removal proceedings.  An Immigration Lawyer can advise you whether you should apply for citizenship.

This is a great time to apply for naturalization before fees increase!  If you have any questions about your eligibility to become a US citizen, contact the Mazza Law Group today!

Attorney Stolinas admitted | American Immigration Lawyers Assoc.

State College Attorney Helen Stolinas of The Mazza Law Group, PC, has recently been admitted to the American Immigration Lawyers Association (AILA), the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

In order to become a member of AILA, an attorney must be admitted to the bar of his or her state, and is subject to approval by the national and local chapters.  Attorney Stolinas was qualified for admission due to her good standing as a member of the Pennsylvania Bar since 1992.

Within the past several months, Ms. Stolinas has consulted with clients and family members of individuals seeking Immigration benefits from Mexico, South Africa, the Philippines, Tanzania, India, China, and Kenya. Regarding her practice, Stolinas states: “Immigration law is extremely complex and ever-changing.  It is important to remain up to date on these changes in law and policy, and the resources provided by AILA help me do that.”

In addition to American Immigration Law, Ms. Stolinas’ practice areas include Criminal Defense and Civil Litigation.  If you have a legal question about your Immigration status or that of a loved one, please contact The Mazza Law Group to schedule an appointment.

 

Child Return following Removal | International Custody Law

The Hague Convention on the Civil Aspects of Child Abduction provides a method for petitioning for child return following removal from his or her “habitual residence” to another country.  However, the Convention only applies in signatory countries listed here.

In an interesting decision earlier this week, the 3rd Circuit Court of Appeals decided whether the Hague Convention would apply to require the child return to where they had lived on the Caribbean island of St. Martin but had been taken to the United States by a parent.  The interesting issue arises because St. Martin, a 34 square-mile island, is home to two distinct, but highly integrated countries- French St. Martin and Dutch Sint Maarten.  French St. Martin is a signatory to the Convention (through France), while Dutch Sint Maarten is not.

In Didon v. Castillo, the issue for the court was whether the Hague Convention would apply- given that the child had a home in Dutch Sint Maarten, but the father worked in, and the child attended school in, French St. Martin.  Additionally, the family’s administrative affairs, such as the child’s insurance, were managed in French St. Martin.

When the mother brought the child to the Pennsylvania for a family wedding but failed to return as promised, father filed a petition in the Middle District of Pennsylvania under the Hague Convention, which would mandate the child’s return if it was applicable.  The court granted the petition, and ordered the child returned to father, holding that the Hague Convention did apply, based on a finding that the child was a concurrent resident of both French Saint Martin and Dutch Sint Maarten.

On appeal, mother argued that the Hague Convention did not apply because the children lived in the non-signatory country of Dutch Sint Maarten.  In its analysis of the issue, the 3rd circuit concluded that while it was possible for a child to have alternating habitual residences (where the child would have homes in two countries and spend equal periods in both), that concurrent habitual residences, as argued by father, were not contemplated by the convention.

Therefore, since the child’s home was in Dutch Sint Maarten, the Hague Convention did not apply and the 3rd Circuit ordered that the child return to the United States.

The experienced attorneys at The Mazza Law Group can help with complex legal issues.  Call today for a consultation.

Cohabitation Agreement – Avoiding the Vows

Couples often have lengthy periods of cohabitation without making plans to marry. When individuals anticipate avoiding the vows of marriage in favor of living together with a less formal relationship, it is still possible to clarify the terms by which financial responsibilities will be shared with a cohabitation agreement.   In contrast, individuals with a clear plan to marry often enter into a prenuptial agreement about preserving the assets that they acquire prior to marriage, but a prenuptial agreement does not take effect until a wedding occurs.You can read more about prenuptial agreements and their effect on equitable distribution at the time of divorce here:

When partners desire instead to live together in a comparatively informal relationship, it may still benefit them to outline the terms of their living arrangement with a contract in the form of a cohabitation agreement, designed to determine their respective rights to the property of the other.  In this agreement, individuals may promise to share income, debts, and property, or, in the alternative, a cohabitation agreement may describe a goal of maintaining separate property, so that their acquired assets while they are living together are never considered to legally belong to both partners.  “Separate property” is a term often used by courts in divorce cases to decide what may be considered an equitable distribution of marital assets.  Without a cohabitation agreement and without a prenuptial agreement, couples who live together for a considerable length of time prior to marriage, are most often considered by the courts to have acquired joint marital assets from the date of the marriage to the date of the separation. You can learn more about separate property and equitable division here:

Since Pennsylvania laws do not describe the effect that a long period of cohabitation may have on equitable distribution, it is hard to speculate whether cohabitation would be a relevant factor that is taken into consideration.   In New Hampshire, the Supreme Court recently determined that assets that were accumulated prior to marriage may belong to both parties and divided as part of their divorce decree.  In the case of In the Matter of Deborah Munson and Coralee Bell, the New Hampshire Court added the period of cohabitation to determine that the marriage could be considered “long-term” for purposes of determining a fair division of property and an award of alimony.  The Court ruled that, in New Hampshire premarital cohabitation is “a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that an equal division is an equitable distribution of property.”

In Pennsylvania, Courts follow a similar presumption that ‘equal’ is ‘equitable’ in divorce. While the statute regarding equitable distribution, 23 Pa. C.S.A, 3501 allows the court to consider “all relevant factors,” it provides a list of what constitutes a relevant factor. This includes the length of the marriage.  The law specifically name the “length” or “duration” of the marriage, but not the amount of time that the parties have lived together.    The date of the actual wedding vows to the date of the separation is used to measure what is called marital property.

The Munson and Beal case was unique because the parties were a same-sex couple who were not permitted by law to enter into a traditional marriage during some of their cohabitation.  The Supreme Court clarified that the consideration of a period of cohabitation would not be restricted based on sexual orientation. The Court said “We further note that premarital cohabitation is not unique to same-sex couples . . . . Our holding that the court may consider premarital cohabitation applies to all divorce proceedings.”  Other states’ higher Courts have considered the same issue with varying results.

It appears to be undetermined whether a cohabitation agreement can affect the decisions, but it is worth considering as a way to secure the intentions of the couple living together.  A premarital agreement written and signed properly will the initial acquisition of shared property for those who marry.

If you have questions about cohabitation agreements, premarital agreements or divorce and equitable distribution, contact The Mazza Law Group, P.C. to talk to an experienced family law attorney for information and advice.

State College Lawyer Argues Dashcam Case

Attorney Helen Stolinas of The Mazza Law Group, PC in State College, argued a case of statewide importance involving a police dashcam and the Right to Know Law yesterday before the Pennsylvania Supreme Court.  Her client is Michelle Grove of Spring Mills.

The case arose when Ms. Grove filed a request for a “dashcam” video recording from the Pennsylvania State Police which documented the police response to a traffic accident which happened in Potters Mills, Pennsylvania on March 22, 2014.

Under Pennsylvania’s Right to Know Law the State Police denied the request, but the Pennsylvania Office of Open Records granted access, resulting in an appeal to the Commonwealth Court, which also found that the video was a public record and should be released.  The Pennsylvania Supreme Court agreed to consider this case of statewide importance, and argument took place yesterday before the Supreme Court in Philadelphia.

At issue was whether the documentation of a routine response to a traffic incident is a “public record,” and therefore subject to public access under the Right to Know Law.  Attorney Stolinas made both policy and legal arguments for the release of such videos, noting in court that the challenges of recent years regarding police community relations provide a strong justification for the release of the videos.

The State Police took the position in court that such recordings would violate provisions of the Wiretap Act, but Attorney Stolinas noted that the Wiretap Act only applies to recordings made when the individual being recorded has a “reasonable expectation of privacy.”  Under the circumstances of the case, she argued that the individuals could not expect that their statements, made alongside a public roadway, were private or not being recorded by police.

In light of an argument made by counsel for the Pennsylvania State Police that release of video recordings would place a burden on police agencies due to the need for redaction of certain portions of the videos due to privacy concerns, Attorney Stolinas noted that technology is likely to improve, thereby reducing the burden of redaction.

As is its general practice, the Supreme Court has not indicated when a decision will be made in this matter.  News reports about the case can be found HERE, and HERE.

Possession of Marijuana in State College

On August 1, 2016, the State College Borough voted 5-2 to adopted the proposed ordinance that reduces the criminal penalty of possession of a small amount of marijuana (30 grams or less) from a misdemeanor offense to a non-traffic summary citation.  In Pennsylvania, the possession of a small amount of marijuana is a misdemeanor offense that is punishable by a fine of up to $500.00 and a sentence to imprisonment not to exceed 30 days.  This is the lowest misdemeanor penalty available under Pennsylvania law.  A summary offense is punishable by up to 90 days in prison and a fine of $300.00 The proposed ordinance calls for a fine of $250.00 unless the individual is under the age of 18 then the fine would be $350.00

THE BIG PROBLEM

The biggest problem with the ordinance is that does not address drug paraphernalia.  Drug paraphernalia, is defined by 35 P.S. 780-113(a)(32):

The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.

Paper used to smoke marijuana, a pipe used to smoke marijuana or simply the bag used to carry the marijuana could all be considered as paraphernalia.  Individuals charged with possession of drug paraphernalia face a fine of up to $2,500 and imprisonment up to 1 year.  Possession of drug paraphernalia is a misdemeanor offense and the ordinance does not reduce the penalties for this offense within the State College Borough. Accordingly, if you are charged with Possession of Drug Paraphernalia a criminal complaint would be filed, and if the charges were bound over the case would still proceed to the Court of Common Pleas, not the lower Magisterial District Court where summary offenses are resolved.

So what does this change in the grading of the offense mean?

A reduction from a misdemeanor to a summary offense would ordinarily be perceived as a lesser offense.  However, individuals must give consideration on the disposition of these offenses.  In order words, when pleading guilty to an offense the criminal charge will remain on the individual’s record.  Employers will undoubtedly look to a individuals criminal background when making a hiring a decision and a charge of possession of a small amount of marijuana would appear regardless of whether it is a misdemeanor or a summary offense as both are considered crimes in Pennsylvania.  Certain criminal offenses are eligible for an expungement. In Pennsylvania, a summary offense is eligible for an expungement after remaining crime free for 5 years. Typically, a first offense, misdemeanor charge of possession of a small amount of marijuana would be eligible for Accelerated Rehabilitative Disposition (ARD) and would be entitled to have the record expunged after 12 months and completion of the program.

Individuals should consult with an experienced attorney at The Mazza Law Group, P.C. to discuss the best disposition for their case.

Surrogacy Law:  How important is the surrogate contract?

Modern advances in scientific means of assisted reproduction (surrogate) have allowed prospective, wanna-be-parents to have children in new ways that we would not have imagined when we were children ourselves, but has the law kept up with the progress?  In the recent case of In Re Baby S., 2015 PA Super 244, Pennsylvania Superior Court has recently considered whether a surrogate “gestational carrier” contract was enforceable against a prospective mother who changed her mind about raising a child when it became time to put her name on the birth certificate.

The “Intended Mother” and her husband, the “Intended Father” had signed a surrogacy contract through a reproduction-assistance company with a surrogate “Gestational Carrier,” who would carry a child developed from a donated egg and the sperm of Intended Father.  The contract for ovum donation and the gestational carrier contract were clear that, once the carrier was confirmed to be pregnant, the agreement could not be terminated.  The Intended Parents’ names were to be entered on the child’s birth certificate, and the surrogate mother was not to have any parental or custodial rights or obligations.  This provision would typically be used to enforce the Intended Parents’ rights to raise the baby as their own, without interference from the gestational carrier.

The prospective parents of Baby S. were having marital difficulties by the time the surrogate, gestational carrier was due to give birth, so a legal dispute ensued about whether the woman who contracted to carry a baby to term for the Intended Parents could ultimately be held legally and financially responsible as the birth mother.   Intended Mother claimed that it was a violation of public policy to enforce the contract for motherhood to which she had agreed.  The “public policy” argument essentially means that the Courts may not force individuals to carry out an agreement that is contrary to the overwhelming majority of public opinion regarding an issue of “public health, safety, morals or welfare.”

Since actions and agreements are presumed to be legal if the legislature has not written a law stating otherwise, the Courts are unlikely to void a contract as against public policy.  According to the Court’s decision regarding Baby S., “(t)he standard for deciding a case on strict public policy grounds in unquestionably high. . . ,”  and the absence of  a specific statute regarding the validity of surrogacy agreements does not defeat the contract in the case.  Because the agreement unambiguously stated that Intended Parents would be the legal parents and the gestational carrier would have no maternal rights, there was no basis for the Court to allow the Intended Mother to escape responsibility.  Father was awarded physical custody, and since Intended Mother breached the agreement by refusing to have her name on the birth certificate, she was ordered to pay the legal fees of the Gestational Carrier as well as child support to the father raising the child.

Most often, prospective parents who have invested emotionally and financially in developing surrogacy contracts are committed to raising a child for life, so there are more legal cases initiated by surrogate mothers who have changed their minds and seek to change their surrogate role to the status of a custodial parent. For example, in the 2006 Pennsylvania Superior Court case of J.F. v. D.B., J.F. v. D.B., a gestational carrier sought custody of triplets after their birth, but the Court ultimately dismissed her claim and awarded custody to the father, who was a biological parent.  The Court “declined to rule on the validity of the surrogacy contract,” based in part on the carrier’s choice to rely on the argument that the surrogacy itself made her the “legal mother.”  Accordingly, the Court also stated, “we decline to rule on the propriety of surrogacy contracts generally.  That is a task for our legislators.”   The Superior Court ultimately denied the gestational mother’s claim, finding that the surrogate did not have standing, the legal right to seek custody or adoption of a child.  The biological ties are binding, and both “Intended Parents” and potential surrogate gestational carriers, should have a clear and valid surrogate contract and legal advice about their parenting choices before asserting or relinquishing parental rights.

Without legislative action or Court guidance beyond the assurance that certain surrogacy agreements do not violate ‘public policy,’ solid, legal contracts with a gestational carrier and necessary donors are crucial steps in preparing for surrogate parenthood.  If you have questions about contracts, surrogacy, custody or other family law issues, contact the Mazza Law Group, P.C. for consultation and legal advice.