06.29.08

New Custody Law

Posted in Uncategorized at 3:18 pm by admin

An in loco parentis parent is an individual who is not biologically related to their child and has assumed the obligations of a parent-child relationship without the formality of adoption. Unless both parents come to an agreement, a sustained, substantial, and sincere interest in the welfare of the child must be proven in court for an in loco parentis mother or father to receive custody rights.

In a very recent case in Pennsylvania, Jones v. Jones, an in loco parentis mother who was not a biological or adoptive parent of the biological mother’s children, was awarded legal custody and primary physical custody of the children based on the best interest of the child standard. In Jones, the biological mother continually interfered with the in loco parentis mother’s attempts at court ordered visitation with the child.

In Pennsylvania, custody is always ruled by the “best interest” standard which takes into account the child’s physical, intellectual, moral and spiritual well-being. In Jones v. Jones, the biological mother attempted to exclude the in loco parentis mother, and attempted to completely control the child’s life. The mother’s actions were found to be self-serving rather than a sincere care for the child.

A new law is currently being decided upon that would, by statute, give in loco parentis mothers and fathers the right to sue for legal and physical custody of their children. Senate Bill Number 74, among other things, defines “legal custody” and “physical custody.” Legal custody is the right to make day to day decisions for a child, such as medical, religious, and educational decisions. Physical custody is simply who has the child’s physical presence. In Pennsylvania, most parents share legal custody rights and one parent has primary physical custody and the other parent has partial physical custody/visitation rights. The new statute would allow an in loco parentis mother or father to sue in court for legal and physical custody. Prior to the new law, only the law found in cases, and not by statute, allowed for an in loco parentis mother or father to request legal custody.

The law in this Commonwealth has changed in recent times to allow for two lesbian’s to adopt together. Non-biological non-adoptive lesbian in loco parentis mothers have been required to pay support for their children. A child will not have a right to parental financial support or healthcare insurance without an in loco parentis mother having rights to custody. Clearly, having two loving and capable parents, who are required to share in the parental duties and responsibilities, is in the best interest of children.

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Why A Will Is A Must

Posted in Uncategorized at 3:18 pm by admin

Here are the basics. Wills–if you die without a Will or a spouse in Pennsylvania, your estate passes to your children. If you do not have children your estate passes to your parents, then to your brothers and sisters or their children. Your grandparents are next, and then on down the family line until your estate goes to the Commonwealth of Pennsylvania. Who will be the administrator of you estate is also governed by state law.

If you have a partner and die without a Will, the partner may not only end up with nothing, but may have to go to court to prove ownership of what was rightfully theirs. If you have minor children, a court may appoint a guardian that may not be the person you hoped to raise them. Even with a small estate a Will is important because if you die in an accident because of negligence, the person named in your Will could benefit from an award or settlement. Larger estates should utilize estate planning to make sure that they are not taxed more than the law requires. Another consideration is funeral arrangements. If you do not leave specific instructions as to your wishes, those closest to you may not have any rights to your remains and could even be barred from the funeral. A Will can prove your intent to choose someone other than your next of kin to have rights to your remains. (Next of kin have rights by state law).

Two documents that allow you to decide who makes health care decisions when you are incapacitated are the Power of Attorney for Health Care and the Living Will. Without a Power of Attorney for Health Care, those closest to you may not only be barred from making medical decisions, but may be barred from the hospital as well. However, a Power of Attorney for Health Care does not necessarily allow those closest to you to stop life support so a Living Will, called an Advanced Directive for Health Care, is needed to carry out those wishes. It is also recommended that you carry a Medical Identification Card that simply states who to contact in case of an emergency.

Another important document is the Power of Attorney for Finances, which allows someone else to make financial decisions for you, including making payments and writing checks. Basically, with this document anything you can do financially can also be accomplished by the person you appoint. This power is especially important if you become incapacitated. However, this power can be designed to be broad or specific, such as simply allowing the transfer of an automobile.

All of these documents are very inexpensive considering the rights they convey and the peace of mind they give. A Simple Will should not cost more that $100.00 and the Power of Attorney for Health Care, Living Will, and Power of Attorney for Finances should be less than that. You can get these in kits over the internet, but are not recommended, especially the Powers of Attorney, as Pennsylvania has specific notice requirements. Also, using an attorney will help ensure that the documents are correct.

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Time to Talk Deed

Posted in Uncategorized at 3:17 pm by admin

Partnered and buying a home or already own a home and want to add a significant other’s name to the title – its time to talk deed. First there is the question of the mortgage. In Pennsylvania, the name on the deed must match the name on the mortgage. Lenders decide who qualifies for the mortgage. So if only one person qualifies, only one person’s name is on the deed and is therefore the legal owner of the property.

If you are able to have more than one person on the deed, having an ownership interest in the property may be accomplished in a few different ways. For LGBTs the tenancy, or ownership interest, that affords two parties the most protection is that of joint tenants with right of survivorship. If one person named on the deed dies, a joint tenancy with right of survivorship will allow the property to pass to the survivor without going through probate and thus no one can object, as with a last will and testament.

However, the joint tenants with right of survivorship tenancy do not avoid all taxes.
At death there will be an inheritance tax on the share of property that passes. That tax for unrelated persons is currently 15%. If you already own the property and wish to add an unrelated significant other to the deed with a joint tenant with right to survivorship clause, there will be a 2% transfer tax on half of the value of the property.

By doing some simple math, if you transfer half of the property now, you will pay 2% on half of the value of the property, and 15% on half of the value if one party dies. The alternative is to leave the property by last will and testament. However, if you leave the property by last will and testament to someone who is not related, there will be a 15% tax on the entire value of the property. So in the long run you may save money on taxes by transferring now rather than at death.

You must be sure that owning a home together is in both parties’ best interests. If you are partnered, but only one person is able to be named on the deed, the person whos name is not on the deed should require some protection if they are contributing to the household and/or the mortgage. Both parties should keep a record of the contributions to the mortgage and upkeep of the home. If there is a breakup, the person that is not able to be named on the deed could end up with nothing to show for their contributions. A cohabitation agreement that specifies what the unnamed partner shall receive if there is a breakup should provide adequate protection. Emotions run high when couples are contemplating the purchase of a home. They run even higher if the couple breaks up.

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Ramifications of Vermont Civil Unions for Pennsylvania

Posted in Uncategorized at 3:17 pm by admin

In Vermont, much to their credit, they have a law that allows for civil unions for gays and lesbians. You do not have to be a resident of Vermont to obtain a civil union license. The laws under their civil union statute amount to marriage, with all of the rights and obligations, such as child and spousal support, distribution of property, and inheritance. However, a Vermont civil union does not give you any federal benefits, such as social security.

Basically if you get a Vermont civil union license you are married under another name they call civil union. Presumably such a decision to simply change the name was to appease those that believe marriage is between a man and women”.

I will have to save Massachusetts for another article. However, everyone considering a Vermont civil union should be aware that once they obtain the license, Vermont law applies to the union. Most every lover thinks partnership will never end when contemplating getting married or obtaining a civil union.

However, to get divorced in Vermont you must reside in that State for six months before you can file for a divorce or an annulment. Worse yet, you must reside in Vermont for a whole year before your divorce or annulment will be granted.

Although you may leave Vermont for just cause, such as employment, illness, etc, you have to prove residency for the entire one year period. Vermont is a no-fault and fault divorce State, so once residency is proven the divorce can be finalized. However, as in any divorce such can be accomplished either cheaply or expensively depending on how the spouses want to act during the divorce proceedings.

Here in Pennsylvania civil unions are not recognized by law. Therefore, you cannot get a divorce under your Vermont civil union in Pennsylvania. Part of the Vermont Statute states that you may not be a party to another civil union in order to obtain one in Vermont. Therefore, if you do not go forth with obtaining a divorce in Vermont, and you go through with a civil union in Pennsylvania, which presumably could be recognized in Vermont, you could run into problems of bigamy once you reenter that State.

Unless you plan to move to Vermont, getting a Vermont civil union license as a resident of Pennsylvania will never be recommended by me. You can accomplish most of the rights allowed by a Vermont civil union by obtaining an unrecognized by Pennsylvania law civil union in Pennsylvania, and then obtain Wills, Powers of Attorney, Cohabitation Agreements, and Custody Agreements, which are all recognized under Pennsylvania law.

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Health Care Power of Attorney

Posted in Uncategorized at 3:16 pm by admin

I have heard a few horror stories about LGBTs and powers of attorney. Without a power of attorney for health care you may be unable to accompany your partner or loved one to the doctor’s office or hospital room. Even in an emergency, without a power of attorney for health care in your possession, you may be unable to travel with your partner in an ambulance. Could you imagine the horror of being told you cannot get into the ambulance with the love of your life because you do not have a power of attorney? Then running home to get the power of attorney only to find that your partner had died en route to the hospital!

The Health Insurance Portability and Accountability Act (HIPPA) have made health care professionals extremely vigilant in not allowing access to their patient’s confidential health information. Such information includes your name, address, and social security number. Although, there is no private cause of action under HIPPA, and there is a 180 day time limit to file a claim, an entity that is accountable under the Act is subject to severe fines for an infringement.

Many durable powers of attorney only contain a short paragraph concerning health care, which may not be enough to allow a partner to access confidential health information. A comprehensive health care power of attorney allowing specifically for access to confidential health information, while giving the power holder the ability to choose doctors, provide for changes in care and comfort, is the best way to protect your rights concerning your own health care.

While a power of attorney for health care allows someone else to make decisions for you if you are incapacitated, it does not necessarily allow them to make the decision to stop life support. A living will, called an Advanced Health Care Directive in Pennsylvania, is needed to carry out those wishes.

Although a Last Will and Testament is important, a power of attorney for health care is, in my opinion, the most important document an LGBT can have. In my last hours I do not want a doctor or family member interfering with the rights my partner should have as a matter of course.

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Co-Habitation Agreements

Posted in Uncategorized at 3:15 pm by admin

Since marriage rights are still not available to LGBTs in Pennsylvania, I strongly advocate the use of cohabitation agreements. I have been consulted too many times by a partner in a long-term or short-term relationship that ends up with nothing when the relationship ends. Without a written agreement, arguing in an equity court is a very difficult and costly course to take.

Cohabitation agreements are good for long-term relationships as well as those just moving in together or sharing expenses or bank accounts. A cohabitation agreement is a contract between partners that spells out who owns certain property, including the home, land, and personal property. The agreement can also state who will be liable for certain expenses or debts, and what will happen in the case of a separation or simply if an argument over such matters comes up. The agreement can also specify what type of court will be used if there is litigation, since arbitration and mediation can be less costly than common pleas court.

Such an agreement can even allow for support payments when one partner is in a better financial position and the relationship ends. Some relationships last many years. Partners often come to believe one of them should stay at home and maintain the house or care for the children. Work at home may be shared unequally as one partner may work longer hours or one partner may go to school while being supported by the other. Since there is no legal marriage, if the relationship ends, the partner who does not work or makes less of an income can be in a financial bind and may literally become homeless.

This is not to say all relationships that do end, end badly. Some partners are able to divide things fairly and go on with their lives. However, a well drafted cohabitation agreement can ease the fears of both partners. An agreement is especially important if you plan to allow yourself to become dependent on someone else or you are supporting someone while they advance their careers through schooling. If one partner is not willing to have a cohabitation agreement, both partners’ life choices should be made very carefully. If income is a concern, I would suggest keeping a “rainy day fund”.

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Adoption in Pennsylvania

Posted in Uncategorized at 3:14 pm by admin

For those of you thinking about adopting, here is a brief overview of the specifics. In Pennsylvania a gay or lesbian couple may adopt a child who is not biologically or adoptively related to either partner. A gay or lesbian partner may also adopt a child who is the biological or adopted child of the other partner.

In 2002, our adoption law was interpreted by the Supreme Court of Pennsylvania to allow gay partner, second parent, adoptions. The Court found that it was “absurd to prohibit their adoptions merely because their children were either the biological or adopted children of one of the partners prior to the filing of the adoption petition.” The only body who can change the present state of the law is our legislature. Some in the Pennsylvania legislature have pushed for such a change, so be aware of where your votes go!

If there is a known biological or adoptive parent outside of the gay or lesbian relationship, that parent must give up their rights. Giving up their rights will amount to a complete break in that relationship. They will have no rights as to custody or visitation and no duty of support. If the person giving up their rights is willing to do so, the process is simple and requires a consent form. If the person giving up their parental rights is not willing to do so, their rights must be terminated. Termination of parental rights is accomplished by proving that the parent has shown a complete and ongoing unwillingness to care for the child. The specific requirements for such a determination are governed by statute.

An adoptive parent steps in the place of the biological or former adoptive parent. That is, they will have all of the rights of a natural parent, such as custody and visitation. They will also have all of the obligations as a natural parent, such as being responsible for the welfare of the child and supporting the child financially.

Gay or lesbian second parent adoptions should be treated the same as step-parent adoptions. However, some county judges require an investigation of the same sex adopting parent, which is normally not required for step-parent adoptions. This may be discriminatory. However, causing the judge some discontent, and the process of appealing such a requirement, may not be in the adopting parent’s best interest – emotionally or financially. The investigator, usually a court appointed agency, files a report for review by court. The investigation consists of an interview and home visit.

The cost including attorney fees, court costs, and investigation fees associated with a consensual or unknown sperm donor adoption may run from $1,000.00 to $1,500.00. However, the cost to terminate a parent’s rights would make the endeavor significantly more expensive.

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A Possible LGBT Tax Loop-hole

Posted in Uncategorized at 3:13 pm by admin

I recently learned of an interesting loop-hole in the tax law that may help LGBT’s. If you supporting your partner or caring for someone who is ill and that person makes a minimal income, you may be able to claim them as a dependent. You may also be able claim yourself as head of household.

An example would be if one partner is in school or you are caring for someone who is ill and if they earn less than the threshold amount, which is the exemption amount for the particular tax year (Currently $3,250.00). Claiming such a dependent could save thousands in taxes.

To qualify for the “dependency exemption,” the dependent would have to use the test for “qualifying relative.” The person must reside with you the entire year as a member of your household, and the relationship “must not violate local law.” A violation of local law, for example would include the instance where your partner is still married and it may violate local law to co-habitate with a married person. Further, the dependent may not claim themselves on their own tax return.

The rules for “head of household” state that to qualify for head of household you must be unmarried on the last day of the year, you must pay more than half of the upkeep for the home for the year, and the “qualifying person” must live with you for more than half of the year. If you qualify for head of household, your tax rate will most likely be lower than if you file as a single and you may get a higher standard deduction.

I am not an accountant, so if you have any further questions, please refer to Publication 501, Exemptions, Standard Deductions, and Filing Information. The website is located at IRS or contact a tax professional.

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50 Years of Love & Life

Posted in Uncategorized at 3:12 pm by admin

It all began on April 23rd 1955, when Harry O’Donnell met Arthyr Bennett at the Pink Elephant, a bar located at corner of Mulberry and Chestnut Streets in Harrisburg. The second floor was gay. They would spend the next 50 years together, traveling the world and loving each other.

Arthur was born in 1926. After attending Harrisburg High School and graduating from the class of 1944, Arthyr served with the Army Central Rhineland Ground Forces during WWII. He was the recipient of several medals including the Bronze Star. Harry was born in 1934. He attended Shippensburg High School and graduated from the class of 1952. Harry served during the Korean War and graduated from the Army Finance School.

After their military service, Arthyr worked at the Mechanicsburg Naval Depot as a Management Analyst and was credited for developing SPCCs Item Management Coding System. He retired in 1970 after 25 years of service. Harry worked for the Pennsylvania Department of Public Welfare as the Payroll Division Chief. He retired in 1989 after 33 years of service. Upon retirement, Harry received an accommodation from the Pennsylvania State Senate for distinguished service.

Over the years, Harry and Arthyr helped care for elderly family members. They volunteered extensively with area churches, veterans associations, and clubs. Both of them had a passion for the arts and the theatre. Harry sang with opera singer Marilyn Horn when she performed in Harrisburg in 1995 and with the Texas Men’s Chorus at Carnegie Hall in 1993. They loved working in their immaculate garden, eating gourmet food, and drinking fine wine.

I came to know the both of them last January, when Arthyr became terminally ill and they decided that they needed to get their wills, living wills, and powers of attorney in order. Sadly, in late March I received a call from Harry letting me know Arthyr had passed away. Harry also told me what happened when the ambulance came for Arthyr.

The paramedic took Arthyr’s vital signs and then asked Harry if Arthyr had a Living Will and a designated Power of Attorney for Health Care. Arthyr had both and he had designated Harry as his Power of Attorney. Then the paramedic allowed Arthyr to complete the dying process instead of resuscitating him. Arthyr died at home with the love of his life and soul mate-just as he had hoped.

Being able to help Harry and Arthyr reminded me of why I became and attorney in the first place. If Arthyr had not completed his Living Will, he may have been resuscitated. His death could have been painful, unnecessarily prolonged, and taken place in a hospital. Since they were not legally married, Harry may not have been able to make any medical decisions for Arthyr and possibly not even been allowed to visit Arthyr during his last days.

On April 23, 2005 on their 50th Anniversary, Harry held a beautiful memorial service for Arthyr. The pastor spoke eloquently and even told a packed church that “he could bless a house or a dog, but not the union of Harry and Arthyr.” What a shameful society we live in that does not want to acknowledge such an incredible 50 year MARRIAGE.

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WELCOME TO THE LAW OFFICE OF DEREK J. CORDIER WEBSITE

Posted in PA Law at 2:07 pm by admin

(NEW) Wills, Living Wills, and Powers of Attorney can be completed online – email us for directions.

Now you can pay for services online with a credit card using PayPal, simply click the icon below.

PLEASE NOTE: This website is for informational purposes only and is not intended to be legal advice as the circumstances of each case vary.

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