Archive for March, 2017

Spotlight Issue: Custody rights of grandparents in Pennsylvania

Friday, March 31st, 2017

What custody rights do grandparents have in Pennsylvania? PA law sets forth the criteria to determine whether a grandparent can petition the court for any type of physical custody of a child (including full custody):

- The grandparent’s relationship with the child must have started with the consent of a parent of the child or under a court order;
- The grandparent must be willing to assume responsibility for the child; and
- One of the following conditions must be met:

1- the child is declared dependent by the courts
2- the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
3- the child has lived with the grandparent for a period of at least 12 consecutive months and is then removed from the home by the parents – the action must be filed within six months of the child’s removal

If a grandparent in Pennsylvania is requesting only partial physical custody or supervised physical custody then the grandparent must show one of the following situations exists:

- If a parent of the child is deceased then a parent or grandparent of the deceased parent may file for custody
- The parents have commenced and continued divorce proceedings
- The child has lived with the grandparent for a period of at least 12 consecutive months and is then removed from the home by the parents – the action must be filed within six months of the child’s removal

**Note – Pennsylvania previously allowed grandparents to seek partial physical custody or supervised physical custody where the parents of the child were separated for 6 months, but the Pennsylvania Superior Court recently ruled in D.P. v. G.J.P. that this portion of the statute to be unconstitutional.

As in all custody cases, the courts use a “best interest of the child” standard to determine whether or not a grandparent should be granted custody rights of a child.

If you are a grandparent seeking custody or your child’s grandparent has filed a custody action against you, you should consult with an experienced family law attorney on this lesser-known area of law. Contact our Berks County custody attorneys today at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Expungement of criminal offenses

Thursday, March 2nd, 2017

A criminal charge, even without a conviction, can have a very negative impact on a person’s ability to obtain employment, get a loan or find housing. Is there anything that can be done to erase your criminal record? In some cases, yes: you may be eligible to have your record expunged or declared “limited access.”

What is expungement? In Pennsylvania expunging a criminal record is defined as the following:

1- removing information so that there is no trace or indication that such information existed
2- eliminating all identifiers which may be used to trace the identity of an individual
3- maintaining certain information when an individual has successfully completed the conditions of any pretrial or post trial diversion or probation program (ex. ARD)

Even if you’ve been convicted of a crime, you can still have your record expunged under the following circumstances:

- the defendant has reached 70 years of age and has remained arrest free for 10 years since the date of release from confinement or supervision
- the defendant has been dead for 3 years
- the defendant was convicted of a summary offense and has remained arrest free for five years following that conviction
- the defendant, who is 21 or older, was convicted of underage drinking after turning 18 and has satisfied all terms and conditions of the sentence imposed

**A judge has the discretion to grant expungement in situations 1-3, above, but MUST grant an expungement in situation 4 if a petition for expungement is filed.

If a criminal case was filed against you, but the charges were dismissed or you were found “not guilty” following a trial then the court can order that the charge be removed from your record.

However, except in the case of ARD, expungement is not done by the court automatically. This means that if you fall under any of the criteria for expungement other than completing your ARD case, you must file the proper paperwork to have the court consider your request for expungement.

As of November 2016, there is a new way to prevent a criminal record from ruining your future. Pennsylvania law now allows for a judge to enter an order for “limited access.” This law applies to those defendants

- who have remained free of arrest or prosecution for 10 years from the date of conviction or final release from confinement or supervision, whichever is
later and
- were convicted of a misdemeanor of the second degree, a misdemeanor of the third degree or an ungraded offense who carries a maximum penalty of no
more than 2 years
- none of the exceptions apply

Under limited access, the criminal record is not erased, but the court orders that any criminal justice agency maintaining these records may not release any information about the case except to other criminal justice agencies, professional licensing agencies or some specific government agencies.

A defendant who is otherwise eligible cannot obtain a limited access order if he has ever had a conviction for any of the following

- an offense punishable by more than 2 years or more of imprisonment
- four or more offenses punishable by 1 or more years of imprisonment
- a simple assault conviction except when the offense is graded as a misdemeanor of the third degree
- a violation for sexual intercourse with animals, impersonating a public servant, intimidation of witnesses or victims, retaliation against witness, victim or
party, intimidation, retaliation or obstruction in child abuse cases, any offense which requires registration as a sex offender

Just as with expungements, a petition must be filed to ask the court to issue a limited access order.

Under both the limited access and expungement provisions, the district attorney’s office has a right to object to the expungement. If there is an objection then a hearing will be held at which time the judge will weigh the defendant’s interest in having the record expunged or declared “limited access” versus the state’s interest in keeping the record public.

If you have a Berks County criminal record that is holding you back and you think you might be eligible for either of the above options, contact our experienced Reading, PA criminal law attorneys at 610-372-5128 or info@enmlaw.com.