Who May Adopt?

An adoption petition can be filed by anyone. Pursuant to 23 P.A. CS 2312, any individual may become an adopting parent. There is no requirement that a prospective parent be married or in a relationship. An adoption can take place in any county where the natural parents of the child reside. It may also take place in any county where the child to be adopted resides or in the county where the prospective parent resides. Background clearances must be obtained for the prospective parent as well as any other adult household members. If not already resolved, the rights of the natural parents of the child need to be addressed in connection with the adoption proceeding. The natural parents can cooperate in consenting to the adoption and or voluntarily relinquishing their rights. There are also circumstances in which a prospective parent can petition for the involuntary termination of the natural parents’ rights.

The first step is to file the applicable petition for adoption and/or termination with the correct court. Each county has their own local rules and forms to be used in an adoption matter. Additionally, each county sets their own fee schedule in terms of what filing fees will be due and for which pleadings. A streamlined adoption process may be available depending on the familial relationship of the prospective parent to the adoptee in that the requirement for a home study may be waived. The cost and procedure for a home study, where necessary, also varies by county. Working with an experienced adoption attorney will help you in navigating all these areas.

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Impact of Criminal Background on Adoption

Background checks are required for all prospective parents in an adoption matter. In Pennsylvania, there are three background checks that are required: Pennsylvania Child Abuse History Clearance through the Department of Human Services, Pennsylvania Criminal Record Checks through the State Police, Federal Bureau of Investigations (FBI) Criminal Background Check through the Department of Welfare. New Jersey requires state, federal and local criminal history checks. These background checks must also be completed for all other adult household members where the adoptee will reside.

If a prospective parent has lived outside of the current state in the five (5) years immediately preceding the adoption petition, similar background checks must be acquired from each state where he or she previously resided. Background checks must be less than one year old at the time of the adoption hearing. The mere existence of a record does not necessarily mean you cannot successfully adopt a child. It is up to the court to look at the nature of the record and whether it poses risk to a child. If there is no substantial risk, the adoption may still proceed. Additionally, if an adult is being adopted, prior criminal background is not an issue since the adult adoptee is consenting to the adoption.

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Is Chapter 7 Bankruptcy the answer?

Well, it depends on what question you are asking. Chapter 7 is designed to give a person a new start. It is designed for people who have consumer debts, credit cards and medical debt. However you must attend credit counseling before you are able to file to see if there is any other kind of debt consolidation program that may help. You are also requried to go to Debt Education Counseling after the bankruptcy is discharged to make sure you don’t get yourself back into the same predicament.

Bankruptcy Chapter 7 can be the answer, if you qualify. You have to pass a test. Not like a test at school, but the “means” test. The “means” test has two parts. First, it looks at your annual income to see if it is below the state median income. If you are below, you pass the first part of the test. The second part of the test looks at your regular monthly expenses versus your income to see if you have any disposable income at the end of the month to give to the creditors to pay them back. If at the end of the month, you have money left over, then you may be a candidate for a Chapter 13 repayment plan. If you have very little at the end of the month left over, you can qualify for a Chapter 7 discharge.

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Chapter 7 is the answer if you are trying to protect assets with low value. Can I protect my home in a Chapter 7 bankruptcy? This depends on the amount of equity in the home and whether you can keep current with your payments. When you file a bankruptcy, the trustee has the right to sell items to pay off the creditors. However you are also given some exemptions which is some property that you can keep. If the house has very little equity you would probably be able to reaffirm the mortgage debt and keep the home. If you have significant equity in the home it becomes harder to keep it. Deciding what exemptions apply whether Federal or State becomes very difficult and an attorney can be very helpful in trying to protect as much as you have while still discharging the debts you cannot pay.

Bottomline you need to have very little income left over at the end of the month and assets with very little value in order to obtain a Chapter 7 bankruptcy. If you would like to know if you are a good candidate, make an appointment to talk to one of our attorneys.

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Termination of Parental Rights due to Abandonment

Many parties inquire as to whether they can terminate the other parent’s rights on the basis of abandonment. The answer is not a simple yes or no. Pursuant to 23 Pa.C.S. § 2511, there are nine (9) grounds for involuntary termination of parental rights. Two of the grounds are as follows: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well‑being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

The party seeking termination must prove by clear and convincing evidence that the parent’s actions meet at least one of the grounds for termination as listed in the statute. After inquiry into the parents, the court shall also consider if there is an emotional bond between the parent and child and potential consequence of severing that bond. Keep in mind that termination of a biological parent’s rights and adoption often go hand in hand. A party cannot adopt without termination of the biological parent’s rights. A biological parent cannot voluntarily terminate their rights or sign a child away without another party stepping in to adopt. Similarly, a biological parent cannot have the other parent’s rights involuntarily terminated without another party stepping in to adopt.

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Post-Adoption Contact Contract

It may be possible to remain in touch with your child subsequent to the termination of your parental rights and their adoption. Act 101, which became law in 2010, allows post-adoption contact by agreement of all the parties. Specifically, a birth relative by blood, marriage or adoption can contract with the new adoptive parents in terms of continued contact with the adoptee. In each adoption case, all parties are required to be notified of the possibility of entering a contract for continued contact. The parties should sign to acknowledge they received notice of the options available under Act 101 and their signed acknowledgment would then be filed with the court. If the parties do not sign an acknowledgement, then proof that they were served with the notice should be filed to the court. A sample of the Act 101 notice is included below.

NOTICE REQUIRED BY ACT 101 of 2010 – 23 Pa. C.S. §2731-2742

This is to inform you of an important option that may be available to you under Pennsylvania law. Act 101 of 2010 allows for an enforceable voluntary agreement for continuing contact or communication following an adoption between an adoptive parent, a child, a birth parent and/or birth relative of the child, if all parties agree and voluntary agreement is approved by the Court. The agreement must be signed and approved by the Court to be legally binding.

A birth relative is defined only as a parent, grandparent, stepparent, sibling, uncle or aunt for the child’s birth family, whether the relationship is by blood, marriage or adoption.

This voluntary agreement may allow you to have continuing contact or communication, including, but not limited to:

Letters and/or emails

Photos and/or videos

Telephone calls and/or text messages; or

Supervised or unsupervised visits.

If you are interested in learning more about this option for a voluntary agreement, you contact your attorney.

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Will My Divorce Affect My Green Card Status or Citizenship Opportunity?

Whether or not your divorce will affect your immigration status depends on the stage of the process you’re in. U.S. Citizen and Immigration Services (USCIS) vigilantly watches for possible fraudulent marriages, entered into solely to evade U.S. immigration laws. There are ways to demonstrate your marriage was entered into in good faith, but their effectiveness depends on your stage in the process.

Application for a visa or green card

If your application for a green card has not yet been reviewed or approved and you are applying on the basis of your marriage to an american citizen or permanent resident, your divorce or annulment will end the immigration process. No evidence of marriage in good faith will help at this early stage.

Conditional resident with 2-year green card

If you’ve been approved for a green card but you had not already been married for at least two years, you will receive a 2-year conditional residence. In two years you will be expected to submit Form I-751, asking USCIS to approve your permanent residence. This form is intended to be signed jointly by both spouses, but if you’ve gotten divorced or annulled, you’ll need to file a waiver of the joint filing process.

This, of course, will raise flags, and USCIS will scrutinize your case for evidence of a fraudulent marriage. You will need to provide ample and convincing evidence that you entered into marriage in good faith. It is still possible to get approved for permanent status at this point, but you may want to hire a lawyer expert in immigration and marriage law to help you present the best case.

Permanent resident status applying for citizenship

The N-400 Form is the application for naturalization. Normally a permanent resident must wait five years before applying for citizenship. A person with a green card who has been married to a U.S. citizen for at least three years can apply in three years, as long as the person remains married up to the time of naturalization. If the marriage ends before naturalization, the process stops, but the permanent resident is still able to apply within the five-year period.

Keep in mind that whenever anyone submits the N-400 Form, USCIS will scrutinize the person’s file. If you’ve gotten divorced in that time, fresh evidence should be submitted demonstrating that you married in good faith.

Evidence for marriage in good faith

It’s important to know what USCIS flags as signs of a fraudulent marriage in order to know what kinds of evidence will show yours was a true marriage.

Warning signs to USCIS of a fraudulent marriage include: wide disparity of age; individuals not cohabitating; marriage upon warning of removal; friend of the family; american spouse previously helping people apply for residence; major differences in ethnic or cultural backgrounds; inconsistent answers in separate interviews.

Knowing what USCIS looks for, you can show that you and your spouse engaged in the kinds of behaviors that spouses normally engage in: documents with both names on them (mortgage or rent, joint bank accounts); pictures from your wedding, family get-togethers, parties, and vacations; cards or letters from friends or family addressed to both of you; documents or bills in your name showing your address matching your spouse’s address; birth certificates for your joint children; affidavits from reliable people in support of your marriage. In this case, a statement from a marriage counselor indicating you tried to work out your problems is particularly strong.

If you’ve been divorced and you’re still working toward american citizenship, contact an attorney knowledgeable in immigration and marriage law to help you present the best case to keep your process moving forward.

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Can My Former Lawyer Represent My Spouse in Our Divorce?

While it is common and even preferable for a divorcing couple to utilize the same attorney in mediation, there are clear guidelines that generally prevent one spouse from hiring the other spouse’s former attorney in a trial divorce case.

The american Bar Association (ABA) Rules of Professional Conduct (RPC) rule 1.7 states: 

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (RPC rule 1.7: Conflict of Interest: Current Clients) 

Rule 1.9 of the same code states the following:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. (RPC rule 1.9: Duties to Former Clients)

Therefore, the RPC code of the ABA clearly lays out that a lawyer cannot represent your spouse in your divorce case, not only if he or she has represented you, but also if the lawyer’s current or previous firm has represented you in this case.

Further, a lawyer who has represented you or whose firm has represented you in the past in any way cannot represent your spouse in other matters, without your written consent, and may not use any information collected during your representation to your detriment.

Changing divorce lawyers is not uncommon. Often, in a time of great stress, a person chooses a divorce lawyer hastily or at the recommendation of another person without doing thorough review. Sometimes it’s just a matter of personalities not clicking. Whatever your reason for changing your lawyer, be sure to retain a new lawyer first, so that you are not without representation for a moment. Once you’ve signed the agreement with your new lawyer, inform the other in writing and request your file be sent to the new attorney by a given date.

If you have any questions, contact us here at Ulmer Legal and Mediation Services to see how we can help you.

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Dividing the Family Cars in a Divorce

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When couples begin the divorce process, all assets and liabilities need to be listed and valued in order to determine division between the spouses. Negotiation often involves one spouse being given certain assets in exchange for other assets of the same value – and greater need or emotional attachment are values along with cost that can be weighed in the negotiation process.

If a couple can settle out of court with the help of qualified divorce lawyers to ensure a fair and satisfying distribution between both parties, the couple maintains control over their own assets and their own preferences. However, if they cannot come to an agreement, the divorce must go to court and the division of assets is put into the hands of a judge.

Pennsylvania is an Equitable Distribution state, which means the judge does not necessarily divide property 50/50 but rather in a manner that seems fair. Therefore, when determining who gets what, including the vehicles, the judge will consider many factors.

Was the car owned and paid for completely before marriage by one spouse? It is almost assured that the owner will be awarded the car. Was the car purchased after marriage, but it’s in one spouse’s name and that spouse’s money was used to pay for the car or the loans? Chances are very likely that this spouse will receive the car, although other factors could come into play.

Who has greater need for the car? If there is only one car, who needs it to commute to work because there are no public transportation options available? If there are multiple cars, who needs the van to take the kids to school, or who needs the newer car for a long and difficult commute? All these individual factors weigh into the judge’s decision.

The car’s value is also taken into consideration. If the family has two vehicles and one is worth significantly more than the other, the judge will likely award the cars based on need, circumstances, and payment history, but may also award additional compensation to the spouse receiving the car with less value in order to balance the asset division.

If a car is awarded to you in a divorce settlement, be sure to change the title and owner immediately to yourself. If a balance is owed on a loan, the loan should be restructured or refinanced to have only your name on it.

Your divorce attorney will walk you through the many intricacies and details involved in the divorce process and starting over. Reach out to us here at Ulmer Law to see how we can help you.

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Real Estate Ownership in Pennsylvania

In Pennsylvania, there are several ways that real property (i.e. houses) may be titled. When two or more people own property together, they should be aware of the manner in which the property is owned:

Tenants in Common – When property is owned as tenants in common, each owner owns a certain percentage of the property. Usually, this ownership is equally divided, but can be altered on the deed itself. If you own real estate in this manner, you can do as you please with your share. For example, you can sell your interest in the property, or you can leave it to a friend or family member in your will. When you pass away, your share is distributed through the probate process, and not necessarily to the owners who survive you. Even though all owners own a percentage of the property, they all have the right to enjoyment and possession of the property.

Joint Tenants with Right of Survivorship – When property is owned this way, all owners have the right to enjoyment and possession of the property. However the property passes directly to the survivor(s) upon the death of one of the owners. The owners may not sell or gift their portion of the property without consent of the other owners.

Tenants by the Entirety – This is similar to Joint Tenants, except that the owners must be married to each other. This form of ownership may be dissolved upon death or divorce of either spouse. If it is due to divorce, the ownership reverts to Tenants in Common.

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Guardianship

A guardian can be appointed by the court to make decisions on behalf of an adult individual who has been deemed incapacitated or incapable of making sound decisions on their own. The court must determine whether the individual for whom guardianship is sought can adequately manage their financial resources and/or meet basic essential requirements for their own health and safety. If you are the party filing for guardianship, the first step is to file a petition with the court. A hearing will be scheduled after review of the petition establishing a potential need. The petitioner (filing party) should secure expert testimony to corroborate the extent of the incapacity of the subject individual and the necessity for a guardian as the Petitioner has the burden to prove incapacity by clear and convincing evidence. At least ten (10) days prior to any scheduled hearing, notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to any additional interested parties such as other family members or individuals that could serve as guardian.

In addition to a determination as to whether a guardian should be appointed, the court can also dictate what type of guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated and is capable of managing some aspects of their life. In this case, the court must delineate what powers the Petitioner will have versus what rights the Respondent retains for themselves. Plenary guardianship grants Petitioner all rights as it relates to safeguarding the best interests of the Respondents. This would be appropriate for a Respondent who is totally incapacitated. The court must also indicate the duration of the guardianship with the court responsible to reassess the ongoing need for a guardian. The appointed guardian must act for the best interests of the Respondent and file a report each year with the court regarding the ongoing care of the Respondent. The Respondent or any other interested party can petition the court to modify or terminate the guardianship if circumstances change or if the appointed guardian is not acting appropriately.

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