“How can I change my child’s school” – School Choice and Custody Issues

Every spring and summer, custody attorneys and the custody courts see a drastic increase in the amount of cases brought to the court for consideration regarding where the parties’ children will attend school in the next year. “School choice” cases, as those cases are typically called, are difficult, fact-laden, and emotional inquiries. These cases are made more complex if the change in school, due to logistics of school hours and location, impacts the other parent’s ability to be an active member of the school community or even impacts that parent’s ability to exercise their custodial time.

WHO picks the school for my child?

The Pennsylvania custody statute defines legal custody as “the right to make major decisions on behalf of the child, including , but not limited to, medical decisions, religious and educational decisions.” See http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/23/00.053..HTM for the child custody statutes.  Education decisions include where your child attends schools. Most parents share legal custody and both get an equal vote in educational decisions.

WHERE will my child go to school if my child’s other parent and I do not agree on school choice?

If you have shared legal custody, and you cannot agree on school choice, your only remedy is to file formal paperwork with your court asking for the court to stand in as the tie-breaker and select which school your child or children will attend.

WHY would my child’s school selection be in dispute?

There are a wide variety of situations that can lead to a dispute in where a child or children should attend school. The most obvious reason would be one parent moving to a new school district. However, sometimes the school originally selected jointly by a child’s parents is not the best fit for the child over time. Poor academic performance, bullying, or a need for special academic or disciplinary accommodations are all common reasons for parents to take a step back and reconsider whether the school that their child attends or will attend is truly the best fit for that child.

WHEN do I need to file to change my child’s school?

When you should file will depend on the facts of your case, but, generally, you should be thinking about filing as soon as you know that you do not agree on a school selection. You do not want to wait until the very last minute to ask the court to intercede or you run a very real risk that you will not be scheduled before the court until after the school year commences. Depending on your county, your wait time to get in front of the court could be lengthy. A local attorney who handles these matters regularly can give you guidance on when and how to file.

WHAT evidence will the Court hear about my preferred school?

There are a plethora of resources available on the schools across Pennsylvania, both public and private, which include standardized test scores, crime rates, and curriculums offered at the school. There are professionals who dedicate their careers to analyzing those data sources to provide recommendations on the best fit for your child (at a price, of course). The court will also want to hear from the parents on their positions and possibly school professionals from each school. It is possible the courts may even want to hear from the children involved, if they are of an appropriate age and maturity. “School choice” cases can involve numerous witnesses and heavy amounts of evidence due to the fact-driven nature of the case. At the end of the day, the court has to decide which school will serve your children’s best interests.

HOW do I find a “School Choice” attorney?

Litigation over where children will attend school is a specialized area of the custody law. You should consult with attorneys who regularly handle these cases in your area to gain a thorough understanding of what your case would entail and your likelihood of success.

All of the custody attorneys at High Swartz, LLP handle school choice matters and are well versed in the nuances of this small corner of custody litigation. If you and your child’s other parent do not agree on school choice, a consultation with a member or members of our team can help you analyze the facts of your case and formulate a strategy for future action. If you have any questions, please contact Elizabeth C. Early at 610-275-0700 or eearly@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz Awards Scholarship to Two High School Graduates

Full-service law firm funds $5,000 scholarship in memory of partner Mary Cushing Doherty’s late husband, James DohertyNorristown, PA, August 27, 2018High Swartz LLP, is pleased to announce the 2018 recipients of its James F. Doherty Scholarship, awarded to the child or grandchild of a full-time High Swartz employee. This year’s co-winners are Sophia Dantzic, daughter of attorney Douglas Wayne, and Megan Sellers, daughter of office manager Darlene Sellers.Both students will use the $2,500 scholarship towards tuition at a 4-year college. Megan, originally from Warminster is attending Cedar Crest College majoring in Biology. Sophia, originally from Doylestown, is attending Bennington College in Vermont.The scholarship honors the memory of law firm partner Mary Cushing Doherty’s late husband, James F. Doherty. An employee with Penn Color for 30 years, Jim was a proud chemist and a man of many passions. He loved the study of history, literature, language and more, and was avid bicyclist, competitive trivia master, and a natural humorist. For 30 years, the Dohertys served their church as pre-cana counselors, preparing couples for marriage.“It’s special that our scholarship winners, Sophia and Megan, each worked for our firm and are pursing their college degrees” said Doherty. “I’m glad to know Sophia qualified for a second scholarship, and Megan supports LLS at the Light the Night Walk in memory of her grandfather (as I do in memory of Jim).”Each year, High Swartz offers a scholarship of $5,000 in Jim’s name. It is awarded to one recipient or split evenly between two recipients. Recipients must be either a senior in high school or an older student in college or graduate school, who is planning on attending a trade school, college, or graduate school full-time at the beginning of the current school year.Applicants are required to write an essay related to one of Jim’s passions. The essays are submitted to the judge’s panel anonymously. The applicants also are evaluated based on their community and volunteer activities. For more information about the scholarship, visit the firm’s website.About High Swartz LLP: High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Limited Tort! = Limited Recovery?

Pennsylvania drivers, when presented with car insurance coverage choices, are given the “Limited Tort Option” – at a discount of some 15% to 20% on annual premiums.  While such savings may be appealing at first glance, such a decision can have far reaching adverse consequences – and our firm strongly recommends that our clients select the “Full Tort Option” whenever possible.Not coincidentally, the word “Limited” has been defined as “restricted in size, amount, or extent” — and various synonyms have been offered, such as “restricted, finite, little, slight.”  All of these appropriately describe the impact on your potential recovery of selecting the “Limited Tort Option” . . . should you ever find yourself in the unfortunate situation of having been injured in a motor vehicle collision which is not your fault.As a general rule, choosing Limited Tort restricts your right to make a claim for non-economic harms and losses which arise from personal injuries sustained as a result of a car collision – damages most often referred to as “pain and suffering.”  Regrettably, too many fail to appreciate what they have given up in this regard until it’s too late.  Even one lost opportunity to be fully compensated for all harms and losses will normally far outweigh any short-term savings by choosing the Limited Tort Option.  Therefore, we highly recommend Full Tort coverage to “fully” protect you and your loved ones.Even if you have selected the Limited Tort Option, though, all is not necessarily lost.  Although many insurance companies will attempt to convince persons who have made such an election — and who then suffer physical injuries in a motor vehicle collision — that they are not entitled to any compensation for their pain and suffering, there are exceptions to the general rule precluding such recovery.  Therefore, it is very important that you seek counsel before agreeing to be bound by any “limited” recovery.What exceptions might apply?  A few, have nothing to do with the nature and extent of physical injuries which were caused by the collision, include the following . . .
  • The driver at fault is determined to have been driving under the influence of alcohol or a controlled substance
  • The driver at fault is driving a car registered in another state
  • The driver at fault has not maintained proper car insurance
  • The injured party is the occupant of a motor vehicle other than a private motor vehicle
However, there are also exceptions which relate to how “serious” an injury was suffered.Pennsylvania’s Motor Vehicle Financial Responsibility law provides as follows:Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . . .75 Pa.C.S. § 1705 [Emphases added]A “serious injury” is therein defined as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702 [Emphases added]  Therefore, one who has selected the “Limited Tort Option” may still make a claim for pain and suffering where he or she has sustained a “serious injury.” Whether or not a personal injury has resulted in “serious impairment of body function” is most often the hotly contested question.The first case in which the issue of “serious injury” was addressed by the Pennsylvania Supreme Court was that of Washington v. Baxter in 1998.  There, the Court stated:The “serious impairment of body function” threshold contains two inquiries:
  1. a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
  2. b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment . . . In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.
Washington v. Baxter, 553 Pa. 434, 447–48, 719 A.2d 733, 740 (1998).Since then, parties have focused less on the physical injuries suffered and more on the effect which those injuries have had on a particular body function or functions.  For example, where physical injuries limit walking, lifting, working, sleeping – and even cognitive function – courts have decided that it is for a finder of fact to ultimately determine whether or not a “serious injury” has been sustained.  Factors to be considered include how the injury affected the actual functioning of certain injured areas; the extent of the impairment; the duration of the impairment; treatment required to address the impairment; and any and all other factors.  Indeed, it has been determined that subjective complaints of pain alone may constitute a “serious impairment of body function”—and that an impairment need not be permanent in order to be serious.Accordingly, even where you have selected the Limited Tort Option, please seek counsel in order to determine whether or not it may reasonably be contended that you have suffered a “serious injury.”  To be safe and secure, however, you should always select the Full Tort Option when possible so that you and your family are fully protected – and are unquestionably permitted to make claims for all harms and losses sustained as the result of a motor vehicle collision which is not your fault.We certainly hope that you are never faced with a situation involving serious injury as a result of a motor vehicle collision or otherwise.  If this does occur, though, please be sure to contact an attorney experienced in this area to fully explore your legal options and to seek all available remedies to be made whole.If you have any questions about Limited Tort, please contact Eric G. Marttila at 215-345-8888 or emarttila@highswartz.com. At High Swartz, we advocate for the rights of injured people. With offices in Doylestown, Bucks County and Norristown, Montgomery County, Pennsylvania, our personal injury attorneys work with people who have been injured by the negligence of others throughout Pennsylvania.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

10 High Swartz Attorneys Named Among U.S. News and World Report 2019 ‘Best Lawyers in America’

Montgomery County and Bucks County Lawyers Listed Among Best in U.S., Mary Cushing Doherty is Listed as 2019 Lawyer of the Year in Family Law Mediation

Norristown, PA, August 15, 2018– High Swartz LLP, a full-service law firm with offices in Norristown and Doylestown, Pennsylvania, is pleased to announce that 10 of its attorneys have been named U.S. News and World Report 2019 ‘Best Lawyers in America.’The High Swartz attorneys 2019 Best Lawyers in America, and the practice areas for which they have been recognized, are: Since it was first published in 1983, The Best Lawyers in America has become widely regarded as a respected reference guide to legal excellence. Best Lawyers lists are compiled based on detailed peer-review evaluations, and lawyers are neither required nor allowed to pay a fee to be listed. Votes were solicited from nearly 83,000 attorneys worldwide; 7.4 million votes were analyzed for the 2018 edition. The standalone Best Lawyers magazine will be distributed in more than 30 leading publications around the country, including The New York Times, The Philadelphia Inquirer, The Washington Post and The Wall Street Journal. A digital edition also will be available.About High Swartz LLP: High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Elizabeth C. Early Elected to the Council of the Pennsylvania Bar Association Family Law Section

High Swartz LLP, a full-service law firm with officesin Norristown and Doylestown, Pennsylvania, is pleased to announce that Elizabeth C. Early has been elected to the Council of the Pennsylvania Bar Association Family Law Section for a term expiring in 2021.The PBA was established in 1895; its FLS is comprised of approximately 1,400 attorneys, and is committed to the development and practical working of the law relating to marriage, divorce, child support and domestic relations matters. The council is the executive arm of the PBA Family Law Section and it oversees and manages the programs, activities and initiatives. More information about the PBA and the FLS may be found at https://www.pabar.org/.Elizabeth C. Early focuses her practice at High Swartz on family law, her areas of specialization include divorce, custody, support, equitable distribution, pre and post-nuptial agreements and abuse matters. Liz also serves as court-appointed counsel and guardian for minor children. Ms. Early is adept in reaching amicable resolutions whenever possible and has served as a court mediator in both New Jersey and Pennsylvania. When litigation is required, she is prepared to argue skillfully for her client’s rights.Ms. Early is an active member of the Pennsylvania Bar Association and the Montgomery County Bar Association and a frequent speaker and writer on family law issues at the local and state levels. Liz has been recognized as a Pennsylvania Super Lawyer “Rising Star” by Philadelphia Magazine as well as a “Top Attorney” by both Montco Happening Magazine and Bucks Happening Magazine.About High Swartz LLP: High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Death, Debts and Taxes: What happens to a decedent’s debts?

A common concern of clients during the initial estate administration process is the debts of the decedent.  Clients often wonder, who is responsible for paying the debts?  Can the debt be forgiven? What happens if the estate does not have enough money to pay the debts?These questions are all valid  The answers to these questions can be found in case law, the Internal Revenue Code & Regulations and Pennsylvania statutory laws.To make it easier, let’s answer the questions through the lens of a hypothetical estate – Ester’s estate.  Ester, a Pennsylvania resident, died with $50,000 in credit card debt, medical expenses from her final illness, and various utility expenses associated with her West Chester Borough home.  Ester’s assets are her home, and funds of $25,000 held in her checking and savings accounts.  Ester’s children are the beneficiaries of her residuary estate per her Will.Pennsylvania law, 20 Pa.C.S.A. Section 3381, states that Ester’s debts don’t just disappear at her death.  If the debts don’t disappear, who pays? Only Ester’s Estate is responsible for payment of her debts unless a third-party (family member, neighbor, etc.) co-signed a loan or credit card with Ester.  For now, let’s assume no one co-signed any loans with Ester.  Ester’s credit card debt, her final medical expenses and her various utility expenses will be paid by her estate from the assets that pass pursuant to the terms of her Will.  These assets are Ester’s home and the $25,000 funds from her checking and savings accounts. Ester’s Executor will need to sell the home and use the proceeds from the sale to pay off the credit card debt, final medical expenses and utility bills.But what happens if Ester’s estate either fails to pay her credit card debts or cannot pay her credit card debt due to insolvency or the Executor attempts to have the credit card discharged?If you recall, Ester has used her credit cards to purchase items worth $50,000.  The borrowed funds used to purchase items are not included in Ester’s gross income because at the time Ester borrowed the funds she also created a corresponding liability to pay back the funds to the credit card companies.  Ester’s overall net worth has not increased.  Courts have consistently held that borrowed funds are not included in taxpayer’s income.  The IRS has consistently agreed with this treatment.  So, it would be logical to think that if the credit card companies forgive the debt, the debt should disappear, right?  WRONG!!!!!The general rule under the IRS Rules & Regulations states that the cancellation of a debt for less than adequate consideration causes the debtor to recognize ordinary income in the amount of debt that was forgiven. Section 61(a)(12) of the Internal Revenue Code states that gross income includes “[i]ncome from the discharge of indebtedness.”  No matter how you slice it or dice it… “cancellation of indebtedness”, “cancellation of debt”, “discharge of debt”, and “forgiveness of debt” converts to ordinary income!  The credit card companies report the forgiveness of debt to the IRS by using a 1099-C – Cancellation of Debt form.  Even if the credit card company fails to issue a 1099-C form, the cancellation of debt income is still reportable on the estate fiduciary income tax return.The $50,000 of credit card debt has been converted into income, which must be reported on the estate’s federal fiduciary income tax return, Form 1041 – US Income Tax Return for Estate and Trusts.  Here, at the very least, Ester’s estate has $50,000 in reportable income to the IRS.  If an estate has reportable income, it likely has income tax to pay unless the estate’s deductions wipe out income.Below is a chart that shows the income tax rates for 2018 for an estate and trust:A review of the chart above clearly shows that the income tax rates are much higher for an estate and trust.  Using Ester’s estate as example, the cancellation of Ester’s credit card debt would result in federal income tax liability of $16,886.50 = $3,011.50 + (37% *(50,000-12,500)).But what if Ester’s estate is insolvent?Section 108 of the IRS Code provides exceptions for which Ester’s estate may be eligible.  Section 108(a)(1)(B) excludes from gross income the cancellation of indebtedness of an insolvent debtor, but only to the extent of the amount of the debtor’s insolvency immediately before the debt was forgiven.  Section 108(a)(3).  So if Ester’s estate is insolvent prior to the debt being forgiven, the estate may exclude the cancellation of debt using IRS Form 982, Reduction of Tax Attributes Due to Discharge of IndebtednessIt’s important to note that only assets that pass through probate are considered for determining insolvency. Recall probate assets are those assets that pass pursuant to the terms of a decedent’s Will.  Here, probate assets would be Ester’s West Chester Borough home and the funds held in the checking and savings accounts.  An estate with cancellation of debt income and very few probate assets will be insolvent if all assets pass directly to beneficiaries through beneficiary designations (life insurance, IRAs, 401(k)). Designated beneficiaries who receive these kinds of assets are not liable for paying a decedent’s debts.To recap, an estate is responsible for paying the decedent’s debt. If the debt is forgiven it becomes ordinary income reportable on the estate’s fiduciary income return regardless if a Form 1099-C was issued by the creditor.  If the estate is insolvent, it may be able to exclude the cancellation of debt under Section 108(a)(3) of the IRC.Before undertaking an estate administration without an attorney, remember the law is complex because (1) there are usually exception to the rules, (2) the law changes frequently, and (3) multiple areas of law can impact an estate, such as IRS Rules & Regulations, Pennsylvania statutory and case law .If you have questions regarding debts and estate administration, please contact Mary R. LaSota at 215-345-8888 or mlasota@highswartz.com. Our Wills, Trusts & Estates attorneys have a thorough understanding of the tax laws and provide comprehensive legal services to assist you in all estate administration matters.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

New Grandparent and Third-Party Custody Law

As of July 2018 a new law regarding grandparent and third party child rights took full effect in the Commonwealth of Pennsylvania.  Act 21 of 2018 expands the categories of people able to request custody of a child through the courts.  Act 21 also clarifies when grandparents can seek custody of their grandchildren.The full text of Act 21 of 2018 can be found HERE.  Below is a summary of how the act has changed third party and grandparent custody law in Pennsylvania:Third Party Custody RightsSince 2011, Pennsylvania law has provided for three specific categories of people who could file for any form of child custody:

(1) a parent;

(2) a grandparent or great-grandparent (if very specific conditions are met); and

(3) a person standing in loco parentis to the child.

Act 21 of 2018 adds a fourth category of people who can file for any form of child custody:

(4) Any individual (not just a family member) so long as the child is not part of a dependency proceeding and the following three criteria are proven to the court: (a) the third party individual has assumed or is willing to assume responsibility for the child; (b) the third party individual has a sustained, substantial and sincere interest in the welfare of the child, which is based on the nature, quality, extent and length of the involvement by the individual in the child’s life; and (c) neither parent has any form of care and control over the child.

So, why the change? As shown by recent statistics, the opioid epidemic has hit Pennsylvania hard, creating new trends in family structure.  Prior to July 3, 2018, if a child’s parents became suddenly unavailable due to death or otherwise, only a grandparent, or a person already historically assuming a parenting role, could file for custody.  Now, under Pennsylvania’s new law, other relatives or willing third parties may file for custody so long as they have a sustained, substantial and sincere interest.Grandparent Partial Custody (aka visitation)Aside from the  right to file for primary physical custody, Pennsylvania law also permits qualifying grandparents the right to request partial physical custody (aka visitation).The three circumstances where a grandparent can request partial physical custody are:
  • If the grandchild’s parent is deceased;
  • If the grandchild lived with the grandparents for twelve consecutive months and the grandparents filed their action within six months of when the grandchild was removed from their home; and
  • Where the grandparents’ relationship with the child began either with the consent of a parent or under a court order AND where the parents of the child have commenced a proceeding for custody AND the parents do not agree on whether the grandparents should have custody.
Section (3) is totally new with the enactment of Act 21.  Under  Pennsylvania’s old law, section (3) allowed grandparents to file for partial custody of their grandchildren when the grandchild’s parents had been separated for a period of at least six months or had commenced and continued a proceeding to dissolve their marriageSo, why the change? Let’s say for example that mom and dad spent the past eight years keeping creepy, estranged Grandpa Joe away from their impressionable little Billy.  Under Pennsylvania’s old law, if Billy’s parents were to divorce, it all of a sudden provided creepy Grandpa Joe with the ability to file for partial custody, even if both parents remained adamantly opposed to creepy Grandpa Joe’s presence in Billy’s life.  Seeing this error,  the Pennsylvania Superior Court said that not only was this a bad idea, it was down-right unconstitutional (because it interfered with a parent’s constitutional right to rear their children).   Under the new law, Grandpa Joe would have already have to had a relationship with Little Billy before the  parents’ ‘divorce, and at least one of the parents have to be in favor of Billy and Grandpa Joe’s continued relationship.Of course, it is important to remember that even though a party may be granted “standing,” meaning the right to file for custody, that’s only the first step.  A grandparent or third party must present evidence, enter testimony and convince the tribunal that awarding the grandparent custody is in the grandchild’s “best interest” (according to the numerous factors set forth in Section 5328 of the Pennsylvania Custody Act).If you have questions regarding grandparent custody, please contact Brittany M. Yurchyk at 610-275-0700 or byurchyk@highswartz.com. Our family law attorneys have a thorough understanding of the new custody law and how this law could effect your family.  Contact us so that we can help you achieve your custody goals.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.