Archive for March, 2015

ENM Law News: Not Guilty Verdict in West Reading Stabbing

Thursday, March 26th, 2015

Attorney Dan Nevins won a complete jury acquittal this week in an Aggravated Assault trial in the Berks County Court of Common Pleas. Our client was found not guilty of all 17 counts. The Commonwealth alleged that our client participated in a stabbing at a West Reading hotel. Three co-Defendants had already been sentenced to up to 10 years in State Prison for their roles in the incident. Nevins attacked the credibility of the chief Commonwealth witness by bringing out his various inconsistent statements, drug use, pending criminal charges and other poor character attributes. The jury deliberated for approximately 90 minutes before delivering the acquittal.

The link to the story appeared in the March 27, 2015 Reading Eagle and can be found here :

Spotlight Issue: Custody Relocation

Saturday, March 21st, 2015

Pennsylvania has strict rules governing the relocation of a child. A parent or guardian cannot relocate with a child unless all parties with custodial rights have agreed to the move or the court has approved the relocation. Relocation is defined as a change in residence which significantly impairs the ability of a non-relocating party to exercise custodial rights. Pennsylvania law does not require that the move be out of the state to qualify as relocation.

Notice requirement – timing

The party proposing the relocation must notify anyone else with custodial rights at least 60 days before the proposed move. If the relocating party did not know and could not reasonably have known of the move within 60 days, and it is not reasonable to delay the move to comply with the 60 day notice requirement, then the relocating party must notify the non-relocating party within 10 days of learning about the need for the move.

Notice requirement – content

The notice of relocation must contain the following information

- new address (unless the relocating party is a victim of abuse in which case the address can be kept confidential)
- names and ages of all persons planning to live at the residence
- telephone number at the new residence, if available
- name of new school district and school
- date of proposed relocation
- proposal for revised custody schedule

Further, the relocating party is required to notify all non-relocating parties that they have 30 days from their receipt of the notice to file an objection to the relocation and that failure to object within those 30 days means that they will not be able to objection to the relocation in the future.

Failure to give reasonable notice

The court has several options when a relocating party fails to give non-relocating parties proper notice. The court can consider the failure as:

- a factor in determining whether or not to approve relocation
- a factor in determining whether or not to modify custody
- a basis for ordering the return of the child to the non-relocating party
- sufficient cause to order the relocating party to pay reasonable expenses and attorney’s fees paid for by the non-relocating party
- a ground for contempt and the imposition of sanctions against the relocating party

It is considered a mitigating factor if the failure to provide reasonable notice is the result of abuse.

Objection to relocation

If a custodial party objects to the relocation then he must file a counter-affidavit asking for an order to prevent the move. The counter-affidavit must be filed within 30 days of receiving notice of the proposed relocation and must be served on the relocating party. In the counter-affidavit the non-relocating party can object to the relocation and/or the proposed modification of custody. If there has been proper notice of the proposed relocation and no objection has been filed, then the non-relocating party is presumed to be in agreement with the move. If a non-relocating party has been given proper notice and has failed to file a counter-affidavit within 30 days of receiving that notice, then the court cannot accept testimony challenging the relocation. A non-relocating party can also complete a counter-affidavit to approve of relocation.

Confirmation of relocation

If no objection to the proposed relocation is filed, then the relocating party must file the following before relocating:

- an affidavit stating that the relocating party has served every custodial party with notice of the proposed relocation, the time to file an objection has passed and no objection to the proposed relocation has been filed
proof that proper notice was given as shown by a return receipt with the signature of the addressee
- a petition to confirm the relocation and modify any existing custody order
- a proposed order with relocation information and modified custody

Modification of custody order

If a non-relocating party files a counter-affidavit approving of both the relocation and the proposed custody modification, then the court may modify the existing custody order by approving the proposed custody schedule submitted by the relocating party. The court will inform the parties how they can modify the custody order in the future. If a non-relocating party files a counter-affidavit objecting to the proposed relocation or proposed custody modification, then the court must hold a hearing. In general, the court is expected to hold a full hearing before the relocation occurs. However, if the court finds that there are exigent circumstances, it may approve the relocation pending a full hearing. If the court approves of the relocation, then it will modify an existing custody order or establish the terms and conditions of a custody order if one does not already exist. The court will do a best interest of the child analysis in determining a custody schedule following the relocation.

Relocation factors

The court will consider the following factors when determining whether to approve relocation and will give additional weight to those factors which affect the safety of the child:

- the nature, quality, extent of involvement and direction of the child’s relationship with the relocating party and with the non-relocating party, siblings and other significant persons in the child’s life
- the age, developmental stage, needs of the child and likely impact of the relocation on the child’s physical, educational and emotional development, taking into consideration any special needs of the child
- the likelihood that the child will be able to maintain a relationship with the non-relocating parent, taking into consideration the logistics and financial circumstances of the parties
- the child’s preference, considering the age and maturity of the child
- whether the relocation will enhance the general quality of life of the relocating party
- whether the relocation will enhance the general quality of life for the child
- the reasons and motivation of each party for seeking or opposing relocation
- the present and past abuse committed by a party and whether there is a continued risk of harm to the child or abused party
- any other factors affecting the best interest of the child

If there is an existing custody order, then the relocating party has the burden of establishing that the relocation will serve the best interest of the child. Each party has the burden of proving the integrity of their motives for proposing or objecting to the relocation.

Failure to follow the proper procedure when it comes to custody relocation can have serious consequences for you and your child. It is important to have a knowledgeable attorney on your side. Contact our Berks County custody attorneys at 610-372-5128 or submit your case using the “Ask an attorney” link.

Cumru Township Car Dealer Sentenced to 15 Years Probation

Wednesday, March 11th, 2015

Cumru Township Car Dealer Sentenced to 15 Years Probation
Inflatable Ball
bouncy castles

DUI Law Update

Wednesday, March 11th, 2015

The Pennsylvania Legislature recently closed a loophole in the DUI statute which will result in harsher sentences for repeat DUI offenders. The loophole was created by the Pennsylvania Supreme Court’s decision in Commonwealth v. Haag in 2009. The Court in Haag said that a defendant could not be sentenced as a repeat DUI offender unless he had been sentenced on his prior DUI offense before the subsequent DUI offense occurred. The Haag ruling resulted in defendants receiving significantly reduced sentences for multiple DUI’s because they could be sentenced on multiple DUI’s without facing the recidivist penalties. In other words, a person could hypothetically have two pending DUI cases (technically a first and second DUI) and only be sentenced as having two first DUIs. Therefore, a person would not be penalized for having more than one pending DUI.

In October of 2014, Section 3806 of the Pennsylvania Vehicle Code was amended to state that the look back period for prior convictions is from the time of sentencing on the present DUI. Therefore, if a person has more than one pending DUI, each DUI will count as a subsequent offense. A defendant can no longer be sentenced for multiple first, second or third offenses during the same period of time. Thus, the same person who before had two pending DUIs and was sentenced to two first DUIs, will now be sentenced to a first and second DUI.

These increased penalties mean that it is even more important that you are represented by a competent attorney if you have multiple pending DUI’s. We want to help you. Contact our Berks County DUI lawyers at 610-372-5128 or submit your case using the “Ask an attorney” link.

ENM Law News: First-Time DUI Offender Avoids Jail

Thursday, March 5th, 2015

A recent client was facing a mandatory 72 hour sentence in prison for a first-offense DUI in Berks County. Our DUI attorneys advised the client that he could complete an intensive treatment program and receive credit towards the jail sentence. Our client participated in the program and did not serve any time in jail. If you’ve been charged with a DUI, let our experienced lawyers help you. Call us at 610-372-5128 or submit your case using the “Ask an attorney” link.

ENM Law News: Second-Time DUI Offender Receives Reduced Sentence

Thursday, March 5th, 2015

Second time DUI offenders are often facing a mandatory 90 day jail sentence. In Berks County the Second Time Offender Program (STOP) allows defendants to reduce their mandatory jail sentences by serving a portion of their sentence on electronic monitoring or in a halfway house. However, admission to the STOP program is not guaranteed. Typically, if a defendant is denied admission to the STOP program, then he must serve the entirety of his mandatory sentence in jail. One of our recent clients was charged with a second-offense DUI and was denied admission to the STOP program. Instead of the client having to serve 90 days in the Berks County Prison, our DUI attorneys obtained a sentence for the client wherein he served 85 days on electronic monitoring and only 5 days in prison. If you’ve been charged with a DUI, our Reading DUI attorneys would like to help you. Call us at 610-372-5128 or submit your case using the “Ask an attorney” link.