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

Same Sex Marriage: Pennsylvania allows dissolution of same sex civil unions under divorce laws

The Pennsylvania Superior Court has recently ruled that same sex civil unions may be dissolved in Pennsylvania under the same laws that apply to married couples.  The significance of the decision in this case, Neyman v. Buckley, is easier to understand from a historical perspective.

In 2000, Vermont became the first state to allow civil unions between couples of the same gender.  Because civil unions did not create the same rights and benefits of the current, more common marriages, the way to terminate the relationship was undefined. In 2009, when the Vermont legislature recognized same sex marriage, they established separate legal methods for dissolving a civil union or divorcing a marital spouse. Since same sex couples can now marry and divorce in any state, it is unclear whether those joined in civil unions must return to Vermont to officially end their relationship.

On June 26, 2013, the U.S. Supreme Court, in the case of U.S. v. Windsor, 133 S. Ct. 2675 (2013), held that it was unconstitutional under the 5th Amendment for the government to issue laws denying individuals the right to marry based on their sexual orientation.  As a result, state courts and legislatures have tried to develop fair and consistent laws about marriage and divorce for same sex couples. In Pennsylvania, Middle District Federal Judge John E. Jones first ruled on May 20, 2014 that the state laws limiting marriage rights to a man and a woman were unconstitutional, in the case of Whitewood v. Wolf. (See our Blog on the Whitewood case)

Most significantly, in 2015, the U.S. Supreme Court ruled in the landmark case of Obergefell v. Hodges, 135 S.Ct. 2584 (2015), that each state must recognize same sex marriages entered in other states.   Since the Supreme Court only referenced “marriage” as the subject of their decisions, the question remained whether individuals ‘wed’ through civil unions rather than marriages may have their unions dissolved in any state jurisdiction.

Recently in Pennsylvania, on December 28, 2016, in the case of Neyman v. Buckley, the Superior Court ruled to that Pennsylvania courts may dissolve civil unions under the existing Divorce Code.  The Court ruled that “a Vermont civil union “creates the functional equivalent of marriage for the purposes of dissolution.”  The trial Court had previously dismissed Freda Neyman’s complaint in divorce against Florence Buckley, saying that Pennsylvania did not have jurisdiction to dissolve a civil union created under Vermont law because the Divorce Code allows divorce only from “bonds of matrimony.”   Considering the legal principle of “comity” on appeal, the Superior Court found instead that the laws of another state should be enforceable “out of deference and mutual respect.”  Since civil unions are treated as the equivalent of marriage, the Court ruled that same sex couples in unions deserve the same divorce options as others, including opposite-sex couples, when their marriage fails.

It remains to be seen how the court will decide issues of property division and support in cases involving both civil unions and subsequent marriages of same sex couples.  If you want to know more about divorce laws and related issues, contact the Mazza Law Group to speak to an experienced family law attorney.

Immigration Status following Inauguration

What does the change in administration, and potential change in immigration policy mean to my immigration status?

Given that a new President is being Inaugurated, many immigration lawyers have been receiving an increased number of inquiries from individuals concerned about whether the new administration’s immigration policies will affect their status, or their plans to apply for a green card, citizenship, employment authorization, or any other immigration benefit.

Right now, our country’s immigration statute, the INA (Immigration and Naturalization Act) remains in full force and effect.  Any changes to that law would require an act of Congress.

However, there are areas of immigration law that have been shaped by Executive Actions- for example, the Deferred Action for Childhood Arrivals (commonly known as DACA) which was enacted in 2012 by President Obama and expanded immigration benefits.  Another example of an Executive Action, which limited immigration benefits, was President Obama’s recent decision to end the policy which allowed Cuban refugees who reached the shores of the United States to have a fast track to permanent residency. The executive branch of our federal government also has the ability to make priorities in terms of enforcement of the immigration laws which are in place.

Right now, there is no way to accurately predict which Executive Actions will be issued, what prosecutorial discretion will be exercised, and how immigration policies will change in the coming months and years.

Now more than ever, it is important to consult an immigration lawyer before filing any immigration applications.  Immigration lawyers will be diligently reviewing any new Executive Actions or changes in the law and policy and can advise you of the best course of action in your case.

If you have a question about becoming a legal permanent resident, citizen, or have any other question about your immigration status or that of a loved one, contact the Immigration Lawyer at the Mazza Law Group.

Is your New Year’s Resolution to create a Will?

An Estate Plan begins with a Will, the document used to convey your property upon your death.  The Estate Plan may also include documents such as Power of Attorney, Health Care Power of Attorney,  Living Will, or Trusts. It would depend on your personal situation as to whether some or all of these additional documents are necessary.  You may be under the impression that you can create these documents on your own. While that certainly is true, you must take into consideration that a Lawyer can help you prepare these documents while answering questions you have probably already asked yourself.  These include:

  • Should I convey my Real Estate in my Will or will that have some tax consequences?
  • Do I need an Executor and what exactly does this person do?
  • If I become incapacitated will a Power of Attorney give a person complete control of my Estate?

These are just a few examples of why it is important to seek legal representation for creating an Estate Plan.  Properly executed documents ensure your financial and personal property assets are handled as you wish. These are important decisions to make and you do not have to face them alone.

In addition to the tough questions faced when creating an estate plan, you also need to consider the Laws governing estates which require specific instruments contain specific language.  A good lawyer will know what those are.

If you are asking yourself where to begin, call us and someone can schedule you an appointment to meet with an Estate Planning Lawyer.

Plea Agreements defeat SORNA court says

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) was enacted on December 20, 2011 and established a three-tiered system for classification and defined sexually violent offenses.  The Superior Court issued an Opinion on December 21, 2016 in Commonwealth v. Ritz that found SORNA unreasonable and in violation of Due Process Rights if applied retroactively.  This decision addressed the interesting legal question of whether the legislature is in violation of the Contract Clauses of the United States and Pennsylvania Constitutions in modifying the terms of a plea agreement through SORNA.

Jonathan Ritz was one of many individuals who were drastically affected by the enactment of SORNA.  SORNA replaced Megan’s Law and extended registration times and added additional registration requirements for specific sex offenses. Many cases were negotiated pleas and Defendants were advised of how long they would be required to register as a sex offender. In Jonathan Ritz’s case, he accepted a plea agreement to indecent assault in 2005. Under Megan’s Law (in effect at the time) he was required to register as a sex offender for 10 years.  In 2012, SORNA came along and upped that requirement to a life time registration.

The Superior Court examined an issue that was not addressed in the Supreme Court’s decision, Commonwealth v. Martinez. In Martinez, Supreme Court found a fundamental due process right to enforce the terms of a plea agreement.  In other words, when a Defendant enters a plea agreement the terms of that agreement should be enforced.  The Ritz decision examined the contractual obligations protected by the United States and Pennsylvania Constitutions, specifically that no state shall pass any law impairing the obligations of contracts.  The Superior Court in Ritz applied the three prong test to determine if SORNA satisfies the Constitutional obligations of the plea agreement. It found SORNA met the first and second prong – 1) impaired a contractual relationship; 2) a legitimate and significant public purpose; however, it found it did not meet the third requirement that the adjustment of contractual rights to be reasonable and of a nature appropriate to public purpose.  It found SORNA to be unreasonable and invalid as applied.

If you have reached a plea agreement that requires you to register as a sex offender and are now being told that you have to register for a longer period of time, call an experienced criminal lawyer at The Mazza Law Group, P.C. We can review your cases to determine if SORNA has violated your constitutional rights.

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.