53 N. Duke Srreet, Suite 315
Lancaster, PA 17602
YORK / CUMBERLAND LOCATION
We accept credit / debit card payments.
At Gearty Law, we strive to provide a wide range of services in various areas of law so we can assist each client with all of his or her needs. We are pleased to announce that we are now accepting new clients seeking a school law attorney. We have attorneys on staff prepared to represent you and your child with a range of potential issues that the student may have. Having a school law attorney will help ensure that your student’s due process rights are protected and that your child is receiving the appropriate education. We can assist with IEP’s (individualized education plans), disciplinary matters, issues that may arise with children in a gifted program, issues that may arise with your college student, and various other matters involving school law.
Having a child with special needs impacts every area of a parent and child’s life, not the least of which is education. At Gearty Law Offices we understand how important it is for a child to receive an appropriate education. Education is the foundation of every child’s future. If your child has special education needs we can help you at any stage of your child’s development, from the determination of your child’s need for modifications for his or her education through an Individualized Education Plan (IEP) through representation at a Due Process Hearing when you cannot obtain the required modifications from the school. From early intervention (pre-school ages 3-5) through High School support may be available to assist your child and Gearty Law is here to help you through that process.
In Pennsylvania, under 22 Pa. Code §14.101 a child of at least 3 years of age and who meets the criteria of a disability under Federal law 34 CFR 300.200.J is eligible for early intervention services. For school age children Federal Law provides for a free appropriate public education to all children residing within the state between the ages of 3 and 21. 34 CFR 300.101. Let us assist you in ensuring your child’s educational needs are met.
For a free phone consultation with a qualified school law attorney, call us today!
PENNSYLVANIA PROTECTION FROM ABUSE PROCEEDINGS
LANCASTER AND CENTRAL PA PFA DEFENSE ATTORNEY/
LANCASTER AND CENTRAL PA PFA PLAINTIFF’S ATTORNEY
The Attorneys at Gearty Law Offices have experience successfully defending individuals against false PFA’s that were filed against them and our Attorneys have experience successfully protecting victims of domestic violence by obtaining protection from abuse Orders.
Under Pennsylvania Law, a person can obtain a PFA by proving by the preponderance of the evidence that one or more of the following has occurred: 1. Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; 2. Placing another in reasonable fear of imminent serious bodily injury; 3. The infliction of false imprisonment; 4. Physically or sexually abusing minor children; 5. Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.
A PFA can only be entered when one or the more of the above occurs by a household member, past or present intimate or sexual partner, or parties that share biological parenthood (which the Court’s have interpreted this to include step-siblings in certain situations).
Unfortunately, parties involved in Divorce and/or Child Custody proceedings have begun using PFA proceedings to try to gain an advantage in their custody or divorce proceedings and do so by bringing false allegations of abuse. The Attorneys at Gearty Law Offices have seen numerous examples of this through the years and have been successful in getting such false PFA’s dismissed. The law requires that the allegations brought in a PFA complaint be proven by a preponderance of the evidence and the burden of proof is on the Plaintiff. If the Plaintiff is unable to meet that burden of proof, then the PFA must be dismissed.
In addition to defending against false PFA’s, Gearty Law also represents victims of abuse by representing them through PFA proceedings. If you or someone you know is a victim of abuse or has had false abuse allegations brought against them, contact Gearty Law today for a free phone consultation at: 717-490-6325.
The Attorneys at Gearty Law Offices obtained a favorable opinion today from the Pennsylvania Superior Court regarding a child custody appeal. A few months ago, a client came to Gearty Law after receiving an unfavorable child custody order at the trial level (the client had other legal counsel representing him at trial). Upon coming to Gearty Law, we were able to find several errors of law that were in the custody order and opinion. Gearty Law then filed an appeal on the client’s behalf to the Pennsylvania Superior Court.
Pennsylvania Child Custody Law requires the court to consider 16 different factors when making a custody determination. In opinion listed below, the Superior Court lists those factors as well as some recent caselaw that applies these factors.
If you or anyone you know received an unfavorable decision at trial (whether in family law, criminal law, personal injury law, or other area of law), please contact the Appellate Attorneys at Gearty Law Offices to see if you have a potential issue for appeal to a higher court. The Lancaster PA and Central PA Appeals/Appellate Attorneys at Gearty Law are here to assist with all of your appellate needs.
(Below are parts of the Superior Court’s opinion that explains the child custody factors and custody laws)
IN THE SUPERIOR COURT OF PENNSYLVANIA
In his brief on appeal, Father raises four issues, as follows.
1. Whether the [trial] court erred and abused its discretion by
awarding the mother primary physical custody of the children by
misapplying and/or ignoring the factors outlined in
[23 Pa.C.S.A.] § 5328[(a)]?
Initially, we observe that, as the custody trial in this matter was held
in August of 2012, the new Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340
(the “Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.
2012) (holding that, if the custody evidentiary proceeding commences on or
after the effective date of the Act, i.e., January 24, 2011, the provisions of
the Act apply).
§ 5328. Factors to consider when awarding custody
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and another
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a continued
risk of harm to the child or an abused party and which party can
better provide adequate physical safeguards and supervision of
(3) The parental duties performed by each party on
behalf of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child
(9) Which party is more likely to maintain a loving,
stable, consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and special
needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328; E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.
In E.D., 33 A.3d at 79-80, the panel instructed that the “best interests
of the child” analysis requires the trial court to conduct a consideration of all
of the sixteen factors listed in section 5328(a) (emphasis added). In E.D.,
we addressed whether the trial court had failed to consider the factors set
forth in section 5328 regarding the custody award. After quoting the trial
court’s summary disposition of the issue, this Court instructed that, on
remand, the trial court should conduct a thorough analysis based on the
factors set forth in section 5328(a). Id. at 82.
Subsequently, in J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.
2011), this Court addressed an appeal by a father from an order awarding
primary physical custody of the parties’ child. The panel determined that the
trial court erred as a matter of law in basing its decision almost exclusively
on the fact that the child was breastfeeding, and that the parties had
difficulty communicating with each other. Id. We concluded that the trial
court failed to assess all of the factors required to be considered under
section 5328(a). Thus, we vacated the award and remanded the matter,
stating that this Court could not make independent factual determinations.
Id., at 652 n.5.
Relying on the decision in J.R.M., Father argues that, in its order, the
trial court failed to consider all of the factors set forth in section 5328(a).
Thus, he seeks for this Court to either fashion a new order that significantly
increases Father’s periods of partial custody, or remand the matter to the
trial court with instructions for the court to engage in further fact-finding
with regard to each of the sixteen factors.
Attorney Gearty was recently interviewed and gave his expert opinion on the topic of unmarried couples living together. This interview was published in a Lancaster based newspaper and the full article is published below. As you will see, there are various considerations to be made prior to entering into a lease with another person. Married couples enjoy various privileges that may not exist for unmarried couples. If you are considering entering into a lease with your partner who you are not married to, we would encourage you to contact Gearty Law Offices to discuss the pros and cons before entering into any such arrangement. Furthermore, it is always suggested that you have an experienced attorney review your lease before signing such an important legal document. As a general practice law firm, we have experience handling various legal issues throughout various areas of law. Gearty Law Offices has experience drafting, reviewing, and litigating leases (both simple and complex).
Intelligencer Journal/Lancaster New Era
A new lease on life?
A new lease on life?
February 28, 2013
BY KIMBERLY MARSELAS, Correspondent
A new baby was due, and so was the rent.
That didn’t keep Brian Hoffman’s tenant from cheating on his girlfriend, or that girlfriend from begging to be let out of a yearlong lease the couple had only recently signed.
Tears or no tears, landlords draw a hard line when it comes to cohabitants who want to split up while living together. During his 20 years in property management, Hoffman has issued one warning hundreds of times, whether he’s talking to in-love, but unmarried, tenants or best friends about to become roommates.
“Your relationship doesn’t matter to me, but your arrangements with regard to this lease will matter to me,” says Hoffman, whose Yeager Agency rents out dozens of units across northern Lancaster County. “If you move in and find out that she is an absolute bum or if she doesn’t respond to the lease, I’m going to hold you responsible.”
In the case of the expectant parents, Hoffman says the man used that fact to his advantage, telling his girlfriend he didn’t care if she disliked his cheating. She had to continue paying rent and utilities. They eventually both moved, Hoffman says, but not before forfeiting a security deposit and paying thousands in termination fees.
If breaking up is hard to do, try moving out when your name is still on a rental agreement. Paying off the remainder of a lease or early-exit fees — in addition to rent on a new place — can be financially devastating. Sticking it out and enduring months of anxiety isn’t a pleasant alternative.
Rent.com recently surveyed 1,000 U.S. renters to find out what life is like for those who break up while living together. The site found that 38 percent of renters have ended a personal relationship while living together, and 61 percent of those people kept living together for a month or more.
Not everyone is willing to make that kind of sacrifice. Sometimes a breakup means one party skips out, leaving the remaining tenant holding a mounting stack of bills.
David Boyd, property manager for Crossroads Property Management’s more than 500 homes in Lancaster, Harrisburg and York, has dealt with many a renter whose special someone wasn’t as special as he or she seemed. If the one left behind can’t muster the monthly rental and utility fees, they may be forced out as well. Boyd says in some cases, like that of a single mom, he might try to give a tenant a few extra days to work out payment.
“You never like telling someone, ‘You’re not paying your bills. You have to leave’,” Boyd says. “You want to help them, but you’re also responsible to the property owner.”
Lancaster attorney Justin C. Gearty Jr. says landlords can make a claim with the local magistrate, seeking to evict the person still in the unit, terminate the other person’s right to access the unit and win a monetary judgment against both tenants.
If one tenant moves out, Boyd says the other should always notify the property manager. In some cases, the landlord may want to run a new credit check to see if the person qualifies to rent the home based on one income. The lease can be amended to remove one name if both parties agree. In that case, only the roommate left behind will be responsible for the remainder of the lease term.
Rent.com’s survey found that 25 percent of renters who remained roommates after a breakup did so “because they didn’t see why they should be the one to have to leave.” If both partners want to keep the space, it may be time to consult a professional.
“They could retain a lawyer or mediator to help them reach some sort of agreement,” says Gearty, adding that any new arrangement will be at the sole discretion of the landlord.
Psychologist Michelle Callahan, a relationship expert who teamed up with Rent.com on the breakup survey, lists a number of ways to determine who gets to keep the rental unit. Someone who works from home or cares for children there might have more incentive to stay. If the apartment is particularly close to one person’s job, that person might feel entitled to remain.
Of course, the person who wants out of the relationship may just want out of the home, too. Having an exit plan is something both renters should weigh before ever signing a lease, Gearty says.
When a contract’s involved, breaking up gets complicated and may be stalled.
Posted in Family Law, General Law Practice, Uncategorized
Tagged attorney, Attorney Justin Gearty, civil litigation, contract, contract attorney, Gearty Law Offices, general civil litigation attorney, general practice attorney, general practice law firm, landlord, landlord/tenant attorney, landlord/tenant law, landlord/tenant lawyer, lawyer, lease, property attorney, property law, property lawyer, tenant, termination of lease, unmarried couples
Gearty Law Offices is a general practice law firm that largely focuses on criminal law, family law, personal injury, civil litigation, and unemployment appeals. The Lancaster, York, Lebanon, and Central PA criminal defense attorneys at Gearty Law Offices have handled a wide range of criminal matters ranging for charges as minor as a summary disorderly conduct to very serious felony cases.
Although Gearty Law handles most types of criminal defense cases, our Lancaster, York and Central PA Drug Crimes Defense Attorney (Attorney Justin C. Gearty Jr.) places a special emphasis on drug crimes. Prior to becoming an attorney, Attorney Gearty spent over seven years working in the field of addictions treatment. In that field, Attorney Gearty spent several years counseling clients addicted to various substances and through those years, Mr. Gearty attended numerous trainings on various issues relating to drugs and addiction. In addition to his experience working in addictions treatment, Attorney Gearty also possesses a bachelor’s degree in psychology, which also gave him education on various drug related issues.
When someone is charged with a drug crime, not only is it important to have an experienced attorney and one who has trial experience, it is also important to have an attorney that has a very thorough understanding of addiction and drugs. For example, when someone is charged with possession with intent to distribute a substance, the State in most cases will have an “expert” take the stand and that “expert” will testify that based off of the circumstances in that case, he believes that the person possessed the substance with the intent to distribute it. This means that the person didn’t actually sell any drug, but the state believes that he intended to sell the drugs based on the facts of the case.
Possession with intent to distribute is a serious felony and if convicted, can result in many years in state prison. Also, if the weight of the drugs is above a certain limit, then a mandatory minimum sentence would apply upon conviction which means that the judge would have no discretion to sentence the person to any sentence less than the mandatory minimum. Because of the seriousness of the consequences, these cases must be aggressively litigated by an attorney that isn’t afraid to go to trial and an attorney with a substantial knowledge of drugs and addiction, such as Attorney Gearty.
In many possession with intent to distribute cases, the State’s expert will rely on the following: the amount of the drugs possessed, amount of money that the person has on them, whether there was drug dealing paraphernalia present, and whether the person has any history of addiction. First, an experienced and knowledgeable drug crimes attorney will attack the credentials of the expert. To be able to do this, the attorney should have as much knowledge about drugs and addiction as the expert does. If the expert’s credentials can be sufficiently challenged, it is possible for the court to rule that the person is not an expert and thus cannot provide opinion testimony. Even if the court still finds that he is an expert, if the drug crimes attorney can attack the expert’s training, experience, and/or knowledge in general, then the jury will potentially see that the expert’s opinion isn’t reliable. Many times these cases will simply rest on the amount of the drugs possessed. That factor, however, can be challenged. Each person is different and every person addicted to drugs responds to those drugs differently. Every addicted person develops a tolerance over time, however, the extent of that tolerance varies by person. Furthermore, the purity of the drugs would come into play. The less potent the drugs are, the more of that drug the addict would possess. The difference in sentencing for simple possession versus possession with intent to distribute is huge.
If you or someone you know has been charged with a drug crime in PA, contact our PA Drug Crimes Attorney (Attorney Justin C. Gearty Jr.) today for a free consultation. 717-490-6325 or by email at: Justin.Gearty@gmail.com
Posted in Criminal Law
Tagged criminal defense attorney, criminal law, lancaster pa attorney, lancaster pa lawyer, pa drug crimes, pa drug crimes defense attorney, pa drug crimes defense lawyer, possession with intent to distribute, possession with intent to distribute attorney, simple possession, york pa attorney, york pa lawyer
Lebanon man, woman escape heroin-dealing conviction
By STEVE SNYDER
Lebanon Daily News
Updated: 02/05/2013 08:49:09 PM EST
No one disputed that 24-year-old Gilberto Escobar was wearing a coat containing 26 packets of heroin when he literally ran out of his shoes while trying to elude state parole officers last April 5.
Escobar was also carrying synthetic marijuana, an Alprazolam tablet, two cigar blunts, two cell phones and $1,763 in cash.
The criminal case against him changed radically in May when his girlfriend, Justene Sanchez, testified at his preliminary trial that the coat and the heroin and other drugs found in it were hers. She was subsequently charged. That left a Lebanon County jury to sort out the facts, and – after 3½ hours of deliberations Tuesday – the jury decided the drugs were Escobar’s, convicting him on charges of possession of heroin, possession of drug paraphernalia, possession of Alprazolam and possession of synthetic marijuana.
Escobar, of 362 N. 11th St., Lebanon, was found not guilty of the most serious charge, possession of heroin with intent to deliver.
Sanchez, 20, of 132 Brookside Apartments, Lebanon, was found guilty of criminal conspiracy related to possession of heroin and drug paraphernalia. She was acquitted on charges of possession with intent to deliver heroin, possession of heroin, possession of drug paraphernalia and criminal conspiracy related to possession with intent to deliver heroin.
Judge Bradford Charles scheduled sentencing for both for March 20.
At the time of his arrest, Escobar was on parole. He had been sentenced to 3 to 10 years in state prison in July 2008 for possession with intent to deliver crack cocaine and other drug charges to which he had pleaded guilty in May 2007.
Escobar did not testify in his trial Wednesday, but Sanchez did – against the advice of her attorney, public defender Elizabeth Judd.
“Why would she do that?” Judd said rhetorically in her closing statement to the jury. “The commonwealth showed you the reasons.”
Those reasons included: Escobar’s family bailed her out of Lebanon County prison after she had been charged; Escobar is the father of her child; and a state parole officer told her what the consequences would be for Escobar if he was convicted. “Ultimately, your decision is, who is the drug dealer here?” Judd said. “The evidence tells you Gilberto Escobar is the drug dealer.”
The jury, though, convicted neither defendant on the drug-dealing charge, despite testimony from Det. Sgt. Richard Radwanski of the Lebanon County Drug Task Force, who cited the quantity of heroin found on Escobar, the “large amount” of currency, two cell phones, Escobar’s failure “to list any legitimate source of income” and “no heroin or opiate addiction” for his conclusion that Escobar was a dealer.
Radwanski added that Sanchez also did not have a job or any known drug dependency.
Yet when Sanchez testified, she asserted that she had been a heroin user, a habit she said she was able to hide from Escobar because the two did not live together.
Radwanski said he did not believe Sanchez could kick a heroin habit “cold turkey,” which she said she did.
Sanchez also said Escobar would not have known about the drugs in the tan coat he took when he left his home on April 5 and was confronted by state parole agents, who chased him down on Lehman Street, tackling and Tasing him twice.
Escobar’s Lancaster attorney, Justin Gearty Jr., disputed Judd’s statement about drug dealing.
“The question isn’t ‘Who is the drug dealer?'” Gearty said. “My client doesn’t have to prove anything here. You can’t possess something if you don’t know it’s there. We heard testimony from Justene Sanchez that the drugs were hers.”
Gearty noted that parole officers did not find any drugs or paraphernalia in Escobar’s home when it was searched.
“Her story matched the facts,” Gearty said of Sanchez’s testimony.
Not so, Assistant District Attorney Nichole Eisenhart said.
“Behind every drug dealer there is a naive woman willing to take the fall,” Eisenhart said.
Eisenhart said Escobar would not have run from parole agents just because he didn’t have a job.
“Flight can be considered evidence of consciousness of guilt,” Eisenhart said.
Eisenhart said Sanchez could not have had a $600 to $900 a month heroin habit.
“Where is she getting money for these drugs?” Eisenhart asked. “What is there to indicate that either of these two are drug addicts? She quit cold turkey? … It just doesn’t add up.
“The only thing that adds up is Gilberto Escobar is a drug dealer.”
State sentencing guidelines call for Escobar to receive a minimum term of between 6 and 15 months in state prison. Sanchez’s convictions carry a minimum term of probation to 1 month in county prison.
Judd said Sanchez has no prior criminal record.
Recently Gearty Law was able to obtain a dismissal of sexual assault charges that were lodged against a client of the firm. Cases like this are examples of how good people can end up being involved with the criminal justice system. In this case, a statement was made alleging that the Defendant and a friend sexually assault a woman. There was absolutely no evidence that would have supported that statement. To the contrary, there was plenty of evidence to show this was a consensual act. Nonetheless, charges were filed. Once charges are filed, bail is set, the person needs to retain an attorney, and the person can go through months of worry regarding the potential outcome of the case (a loss could have resulted in decades in prison), not to mention damage done to a person’s reputation due to the charges being filed. Fortunately, in this case, the charges were dismissed before permanent damage was done.
Below is the article written regarding this case.
JUDY D.J. ELLICH
DAILY AMERICAN REPORTER
10:40 p.m. EDT, October 22, 2012
Sexual assault charges against two 28-year-old Windber men were withdrawn at a second preliminary hearing before District Judge Joseph Cannoni Monday.
XXXXXXX, 19th Street, and XXXXXXX, Mine 37, were accused of forcing a woman to have sex with them Nov. 22.
“As a result of the further investigation it became apparent that there would be proof problems to support the crimes charged,” District Attorney Lisa Lazzari-Strasiser said in a telephone interview.
XXXX’s defense attorney, Justin Gearty of Lancaster, called the withdrawal of the charges “a happy resolution.” He said there is no evidence in this case other than a statement by the alleged victim.
“The reason XXXX waived his right to his (first) preliminary hearing and we agreed to a plea of recklessly endangering, a relatively minor offense compared to the more serious sexual assault offenses charged, was because we didn’t have all the evidence yet and we based our decision on the limited information we had,” Justin Gearty said.
Reckless endangerment was not among the original charges against the two men. It is not a sexual offense. Initially, the men were charged by Paint Township police with three counts each of involuntary deviate sexual intercourse and criminal conspiracy, and one count each of indecent assault and indecent exposure.
“All along XXXX was adamant that he didn’t do anything wrong,” Justin Gearty said.
The defense asked Somerset County President Judge John Cascio to remand the cases back to the magisterial court level after discovering evidence supporting the defense’s belief that a prima facie case did not exist. Prima facie is a Latin term meaning “at first view.” The district attorney’s office did not object to the request. Cascio remanded the case Sept. 18.
“We were prepared to proceed for a preliminary hearing today and go before a jury if need be,” he said.
On March 14 the two men waived their right to a preliminary hearing and the case was sent to county court prior to being remanded back to Cannoni’s office.
XXXX’s attorney is public defender Tara Marie Yutzy Collier. Assistant District Attorney Hannah Myers was the prosecutor for both preliminary hearings. Both attorneys were not available for comment Monday.
Both men pleaded guilty to a summary harassment charge that carries a maximum of 90 days in jail and a $300 fine. XXXX was ordered to pay fines and court costs. XXXX requested that he serve 15 days in jail in place of the fine. His request was granted. He was ordered to pay court costs.
Gearty Law’s criminal defense attorneys have experience handling a wide range of criminal defense cases throughout many different counties in PA. We have handled everything from very serious offenses such as rape and aggravated assault to simple matters such as simple possession, summary retail theft, or disorderly conduct. Regardless of the seriousness of the charge, anytime someone is charged with a crime, there is a potential for serious consequences, ie: loss of job, damaged reputation, excessive fines, and potentially loss of freedom. Since there is so much on the line with every criminal defense case, it is critical that a criminal defense attorney be retained right away and no statements should be given prior to speaking with your attorney. Below is some more information on certain criminal offenses. If you are in need of a criminal defense attorney in Lancaster County, Dauphin County, York County, Berks County, or Cumberland County, call us today for a free phone consultation.
Sex crimes are a particular set of crimes that can carry severe and life long consequences. Often times, the police and prosecutors will file charges just based off of the word of an alleged victim and sometimes will do this even though there is absolutely no scientific or other evidence to support the alleged victims accounts. A single allegation by such a person has the potential to ruin someones life. Convictions for certain sex offenses carry mandatory minimum sentences of years in State prison. In addition to prison time, a conviction or plea to a sex offense will result in Megan’s Law reporting, potentially for the rest of the defendant’s life, depending on the charge. When someone is charged with a sex offense, they should retain a lawyer and law firm that has experience handling sex offense cases. These sort of cases are different from many other criminal matters and take knowledge of both the laws and science involved. Attorney Gearty is an experienced criminal defense attorney that has handled a variety of sex offense charges. In addition to Attorney Gearty’s experiences, the firm utilizes the experience of a registered nurse to assist with evaluating any medical evidence and we utilize the experience and education of other professionals, such as social workers who can help identify whether there are issues with the victim or other witnesses that would be helpful with the case.
Attorney Gearty will review the evidence, will seek speak with our professionals, and will seek out and use other experts to fully evaluate your case. Once your case has been completely and thoroughly evaluated, the various options will be explained to the defendant (ie, plea, trial, pre-trial motions such as suppression motions, etc). Attorney Gearty will always consider all options and will explain each option to the client. Attorney Gearty isn’t afraid to take cases to trial and will do so when the case warrants such.
PA DRUG OFFENSES
Drug offenses are often over prosecuted. We have seen times where a defendant was charged with possession with intent to deliver when there was no evidence to support the position that the defendant actually intended to sale the drugs. The police and prosecutors can, and often do, charge people with possession with intent simply based off of the amount of drugs that are found in their possession. For example, if a person is found to possess 15 bags of heroin, he may be charged with the more serious offense of possession with intent to deliver. However, every drug case is different. There are plenty of addicts that may possess that many bags of heroin or more at any given time and that addict may not intend to do anything with those drugs other than use them. If charged with possession of the heroin instead of possession with intent, the addict would be facing a much lower sentence. Attorney Gearty spent many years working in drug and alcohol treatment prior to becoming an attorney and those experiences help Attorney Gearty bring a unique perspective to drug cases. In cases where the defendant agrees that he did possess the substance, Attorney Gearty will help the client try to get into treatment and will attempt to negotiate a plea that includes treatment instead of jail or will argue the same to the court. We believe that too many addicts are being sentenced to jail instead of given the chance at treatment. We believe that using jail instead of treatment is bad for the defendant as well as bad for the community as a whole as a jail sentence does nothing to solve the problem going forward.
In drug cases, there are many times where the police over step their limits when conducting a search. For each drug case, we take a close look at the circumstances around the search to determine whether there is a suppression issue or not.
Certain drug offenses carry mandatory minimum sentences, such as school zone enhancements and certain mandatory minimums when certain weight requirements are met. These mandatory minimum sentences often require state prison time, even when there has been no prior criminal record.
If you or anyone you know has been arrested for a drug offense, call our drug crimes defense attorney today for a free consultation.
Due to the seriousness of facing a criminal charge, it is critical that you hire a criminal defense attorney right after being charged or even once you know you are being investigated. The police have the benefit of using the advice of the attorneys in the district attorneys office from the beginning of the case, so it is important that the defendant have that same level of representation.
Here at Gearty Law, we are prepared to assist each client with their criminal defense case, regardless of the crime. We will represent the defendant at the preliminary hearing, will argue for a reasonable bail, will file a bail modification petition if need be, will explore ARD as an option when appropriate, will file any pre-trial motions, will engage in meaningful plea negotiations, and will take your case to a jury trial if need be. We believe that each case deserves a complete and thorough evaluation before making any decisions that can affect the case and we thoroughly explain those options to each client, so the client can meaningfully participate in their case.
More posts on other areas of criminal law to follow.
STEP-PARENT ADOPTION AND TERMINATION OF PARENTAL RIGHTS
Our Lancaster and Central PA adoption attorney has helped many families with their adoption. Completing an adoption can be one of the happiest days in a families life, so it is important to have a caring and competent attorney on your side through the legal maze of an adoption process.
I. Termination of parental rights
We frequently get calls from potential clients asking if they can have their parental rights terminated or on the other hand, we get calls from prospective clients asking if we can terminate the other parent’s rights. A parents’ rights cannot be terminated unless it is done as part of an adoption, such as through a step-parent adoption or through a child dependency proceeding, ie: a children and youth proceeding.
If a party does plan to go through with an adoption, the first step is to have the other biological parent’s rights terminated. This can be done one of two ways. First, it can be done with the consent of the parent. The second way is to terminate that parent’s rights involuntarily, which requires an evidentiary hearing and the statutory requirements must be proven. If the party consents, he/she has thirty days to revoke that consent.
II. Involuntary Termination of Parental Rights.
If a parent refuses to consent to the termination of his/her rights, an involuntary termination petition can be filed. To be successful on this petition, one of the following grounds must be met:
1. Abandonment – ie: parent not involved and not supporting the child for a period of six months or longer.
2. Chronic abuse or neglect
3. Abuse or neglect of other children in the household
4. Long-term mental illness of the parent or deficiency with the parent
5. Long-term alcohol or drug induced incapacity of the parent
6. Failure to support or maintain contact with the child
7. Involuntary termination of the parents rights to another child.
One of the above criteria will need to be proven by clear and convincing evidence to have a parent’s rights involuntarily terminated.
Once grounds for the termination of parental rights are established, the next step is to proceed with the adoption itself. This will require the filing of an adoption petition. Prior to the date of the adoption hearing, a home-study will be conducted. Once the home-study is completed, the final step is to have a hearing. Generally, the hearings are relatively brief and the adoptive parents will just need to answer a few questions to confirm that they desire to adopt and will answer some questions to establish that it would be in the best interest of the child or children to be adopted.
IV. Effect of Adoption
Once the adoption is completed, the judge will sign an adoption decree and the original birth certificate will be sent back to the department of vital statistics. The department of vital statistics will correct the birth certificate to add the name of the adoptive parent, which will replace the name of the biological parent that was previously listed on the birth certificate. If it is a step-father that is adopting, the child’s name can also be changed once the adoption is completed.
The adoptive parent will have all of the rights, responsibilities and obligations that a biological parent has. For example, if a step-father adopts and he later divorces the biological mother, he would have the right to seek primary custody or visitation of the child and he would also have the obligation to pay child support if the biological mother retained custody of the child. As another example, if the adoptive parent would die, his/her estate would treat the adoptive child the same way a biological child is treated.
If you are considering an adoption, feel free to contact us for a free and confidential phone consultation. Our Lancaster and Central PA Adoption Attorney would be more than happy to assist you, your family, and your child/children through this exciting life event!
CHILD CUSTODY RELOCATION LAWS IN PENNSYLVANIA
Our Lancaster/York PA Child Custody Attorney, Justin C. Gearty Jr., Esquire, recently handled a case where his client was permitted to leave the state with the minor child. Attorney Gearty represent the mother in this case.
In this case, the mother had lived in the York PA area with the father of the child. She had no other family or friends in the area and was originally from up-state New York. The relationship between her and the father eventually fell apart leaving her nowhere to go in the York area. She ended up leaving the home and moving back to New York, which was about a seven hour drive from York PA. Shortly after she left, the father filed a child custody action in the York County Court of Common Pleas. An initial custody conciliation conference was scheduled and the mother showed up without an attorney. Following this conference, the court entered an order giving the parties shared physical and legal custody of the child. This order resulted in the child being with the father for two weeks and then with the mother for two weeks (the child was not of school age yet). The mother then retained our Child Custody Lawyer, Justin C. Gearty Jr., Esquire. Attorney Gearty appeared on her behalf at the pre-trial conference. Following the pre-trial conference we prepared a Gruber Memo, which is a case that deals with custody relocation issues. Attorney Gearty then began preparing the case for trial and represented the mother at trial. After the court heard all of the evidence, the court awarded the mother majority physical custody and the court approved her relocation. Under this Order, the mother would have the child for the school year with short periods of visitation with the father and the father had summer break minus the mother’s periods of vacation time.
Relocation in child custody cases can become complicated. The PA Child Custody Act has strict requirements that must be followed. The first requirement is that the parent that plans to relocate must send notice to the non-relocating parent. The Child Custody Act outlines the items that must be included in this notice, which includes but is not limited to: the address of the new residence, the new school district, the new phone number, the reason for the move, and a notice to the non-relocating parent that if the non-relocating parent doesn’t respond, the court will approve the relocation. This notice must be sent via certified mail and must be sent at least 60 days prior to the proposed move. Along with the notice, a counter-affidavit must be provided to the non-relocating parent. If the other parent does not agree to the proposed relocation, he/she must then filed the counter-affidavit with the court. Once the counter-affidavit is filed with the court, an expedited hearing will be scheduled where the court will determine whether or not to approve the relocation.
The PA Child Custody Act outlines multiple factors that the court must consider when deciding whether or not to approve the proposed relocation. As with most child custody matters, the controlling issue is: what is in the best interest of the child. With that being the controlling interest, the court will consider how the proposed location will enhance the child’s life. In addition to looking at how the relocation will benefit the child, the court will also look at the non-relocating parent’s relationship with the child and the court need to consider whether alternative visitation arrangements can be made if the relocation was approved.
If you are considering a relocation, contact us today for a free consultation.