Parenting is as rewarding as it is challenging. In this video attorney Kerri Cappella discusses co-parenting after separation, even under the best of circumstances, takes those challenges to another level. Effective, respectful communication between parties reduces tensions between them and helps children adapt to the changes in their lives.
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Many readers will recall the sagacious approach to life challenges postulated by Vanilla Ice in his seminal (only?) hit song, Ice Ice Baby: “If there was a problem, yo, I solve it (check out the hook while my DJ revolves it. Ice ice baby too cold, too cold).” (Citation omitted).
How on earth could this epistemological font be applicable to a custody case, you ask? Simple.
Our legislature, in its own bout of perspicacity, listed the following as the very first factor that our courts must consider in any custody action:
Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
Vanilla Ice could not have said it better himself: a client walks into your office with a problem in a custody case and, yo, you solve it—with Factor 1 at the forefront of your mind.
Start with this simple truism: children do best when they have healthy (safe) relationships with both of their parents. This may not mean 50/50 in every case, but it means that each parent should take every reasonable (safe) step to promote their child’s (safe) relationship with the other parent. Not only is this mindset beneficial to children; it is also good strategy, because it heeds Vanilla Ice’s wisdom and focuses on the consideration set forth in Custody Factor 1. It also informs attorneys how to prepare for a custody trial.
Unlike almost any other area of the law, custody cases will focus not only on evidence that occurred before the case but also on evidence that develops while the case is pending up to the date of trial. Keeping Factor 1 in mind, courts will expect that each parent has done whatever they have within their respective abilities to solve problems regarding custody, and evidence regarding these efforts will be critical in terms of the court’s determination. Read More
Devotees of the probate code are well aware that 20 Pa. C.S. Section 6111.2 provides that if a former spouse passes away and is either divorced or grounds for divorce[1] have been established, then any beneficiary designation by the deceased ex-spouse in favor of the surviving ex-spouse is deemed ineffective unless the deceased ex-spouse makes clear in an updated designation or in a court order or written contract that the designation was intended to remain effective.
Effective May2, 2023, the Pennsylvania Legislature updated the Divorce Code to require every divorce decree to reference the probate code as follows:
An order accompanying a decree of divorce or annulment of the marriage shall include a provision informing the parties to reaffirm or change the beneficiary status on an existing life insurance policy, annuity contract, pension, profit-sharing plan or other contractual arrangement providing for payment to the spouse if it is the intention of one of the parties to keep or change the other party as a beneficiary. The provision shall also warn the parties that failure to do so may result in revocation of the beneficiary designation pursuant to 20 Pa.C.S. § 6111.2 (relating to effect of divorce or pending divorce on designation of beneficiaries). The provision shall be a form as may be prescribed by general rule.
This language is extremely important in any pending divorce action, especially now that the Allegheny County Court of Common Pleas requires parties to obtain an order establishing grounds for divorce before the Court will hold a final hearing to determine the economic issues arising from the divorce.
In other words, there will now be a gap between the establishment of grounds for divorce—which would revoke beneficiary designations without a further writing—and when the Court issues a final determination as to how assets will be distributed. Read More
You are both good parents and want to spend equal time with your child. You are now faced with the question of which schedule will work best for your child. There are several things to consider.
Consider your child’s age. Older children benefit from longer stretches with each parent and fewer transitions. Teens often do a week-on/week-off schedule exchanging on either Fridays or Sundays. Sometimes the parent with the “off week” has a Wednesday night overnight or dinner visit.
Young children, on the other hand, benefit from shorter “visits” with each parent and more exchanges so that they do not go too long without seeing the other parent. The “2-2-3” schedule is popular in this instance. Parent “A” has the child for Monday and Tuesday nights, Parent “B” for Wednesday and Thursday nights. Parent “A” then has the weekend (Friday night through Monday morning) with Parent “B” then having Monday and Tuesday nights and the pattern continues. The downside of this schedule is that some parents do not like that weeknights change each week so that they cannot take the child to certain activities each week.
Some children benefit from being with the same parent on the same weekdays each week. The “5-2-2-5” schedule is popular in this instance. Parent “A” has the child every Monday and Tuesday nights, Parent “B” for every Wednesday and Thursday nights. The parties then alternate weekends (Friday night through Monday morning). Some parents do not like the stretches of five nights in a row. However, once a child has done the 2-2-3 they can transition to the 5-2-2-5 when they get a little older, often when they begin kindergarten or first grade.
A less popular happy medium between the 2-2-3 and the 5-2-2-5 is the “3-4-4-3.” Each week, each parent has the same three nights and they alternate the “odd” night of the week. Read More
Takeaway: Hackers cannot be underestimated, and companies need to take cybersecurity policy seriously.
Earlier this year, a massive Twitter data breach occurred. Researchers are learning that the data breach was significantly more severe than initially reported.
In the first reports, one hacker was suspected of exploiting a vulnerability within the system. The vulnerability exposed subscribers’ Twitter IDs, login names, names, phone numbers, and email addresses.
It is now known that several hackers downloaded personal data using the same vulnerability. Reports are showing a new list containing the data of millions of Twitter subscribers. This new list is different from the earlier reported list which contained 5.4 million records. What’s worse is that the 5.4 million record list is currently being shared for free with other hackers. And there is, additionally, a list of 1.4 million subscribers with suspended Twitter accounts whose information is being exploited.
Most websites have data tracking, and the tracking is collected to generate personalized marketing. Women and men usually experience marketing tailored depending on gender. This data can also be sold to governments. And the number of trackers can vary by site. One can expect a retailer to have more tackers than say, for example, a non-profit.
Interestingly, a recent survey found that the number of trackers may also reflect the attitude organizations have towards privacy depending on where you are situated in the world. Websites in Hong Kong have on average 45 trackers, the highest average worldwide. Websites in the United States have on average 33 trackers, the third-highest average. While websites in Canada have on average 16 trackers, the eighth highest average.
Internet users can limit the number of trackers by adjusting their privacy settings, regularly deleting cookies, clearing out their cache, and enabling their browser’s “do not track” feature. Companies, however, must actively participate with their internal cybersecurity and legal departments providing services to ensure that patches are regularly being run, employees are being educated on cybersecurity risks, policies are continuously updated, etc. Read More
Takeaway: When a cybersecurity-related incident occurs, an insured should not automatically assume a standard commercial general liability (CGL) policy issued by an insurer will cover their losses, as CGL policies generally afford coverage to an insured for losses resulting from bodily injury and property damage. An insured’s cybersecurity losses can encompass much more, such as losses arising from a data breach concerning confidential or personal information of a client or customer, i.e., third parties who fall outside of the scope of an insured’s traditional CGL policy. Therefore, to ensure cyber coverage exists in the wake of a cyber incident, an insured should make certain that potential cyber-related losses are included within the “four corners” of the underlying insurance policy to secure a defense and, more importantly, coverage from an insurer.
Key Point: In determining whether there is a duty to defend, a court must follow the “Eight Corners” Rule and look at the “four corners” of the complaint and the “four corners” of the underlying insurance policies.[1] In other words, an insurer is obligated to defend its insured if the factual allegations of the complaint, on its face, encompass an injury that is actually or potentially within the scope of the policy.[2]
Discussion: Recently, an increasing number of legal battles over whether losses related to cybersecurity incidents are covered by an insured’s policy have tested the applicability of the underlying policy. For example, an Eleventh Circuit panel addressed whether a ‘computer fraud’ policy issued by Great American Insurance Company to Interactive Communications International, Inc. and HI Technology Corp. (together, “InComm”) excluded coverage for losses involving fraud.[3] InComm sold “chits” – each of which had a specific monetary value – to consumers, who can then “redeem” them by loading their value onto a debit card.[4] Between November 2013 and May 2014, InComm lost $11.4 million when fraudsters manipulated a glitch in InComm’s computerized interactive-telephone system that enabled them to redeem chits multiple times, with each duplicative redemption of an already-redeemed chit defrauding InComm of the chit’s value.[5] Read More
Takeaway: Security labels on internet-connected devices are on the horizon for companies that manufacture and want to sell such devices worldwide.
Last week, the White House National Security Council announced plans for a consumer products cybersecurity labeling program aimed at improving digital safeguards on internet-connected devices.
On October 19, 2022, 50 representatives from different industries including tech, consumer product, and manufacturing convened to discuss the cybersecurity labeling program that is planned to launch in the Spring of 2023.
In conjunction with its announcement, the White House also released a fact sheet outlining various cybersecurity initiatives. In its fact sheet, the White House recommends three or four cybersecurity standards that manufacturers can use as the basis for labels that communicate the risks of using internet-connected devices.
Additionally, the administration is working with the European Union to align its Cybersecurity Act standards with those of the cybersecurity labeling program. The White House envisions that products with cybersecurity labels will be sold globally.
The idea is for the standards under consideration to rate products based on how often manufacturers deploy patches for software vulnerabilities or whether a device connects to the internet without a password.
The White House hopes this program will incentivize companies to invest in cybersecurity because they will be rewarded for participating in the program whilst customers are provided with safer products. Part of the process will include using the National Institute of Standards and Technology to create labels according to the specifications of a product. The initial stage of the program includes the creation of bar-like labels on products that consumers can scan with their phones for updated security details. The remaining stages will be released as the White House continues to develop the program.
Protecting connected devices has been an ongoing issue for some time now. Companies should stay alert as the White House releases more information in the coming year. Read More
Takeaway: The latest directive from CISA will enhance federal agencies’ ability to identify vulnerabilities in their networks to prevent and respond to cybersecurity incidents.
On October 3, 2022 the Cybersecurity and Infrastructure Security Agency (CISA) announced Binding Operational Directive (BOD) 23-01 entitled Improving Asset Visibility and Vulnerability Detection on Federal Networks.[1] The aim of BOD 23-01 is “to make measurable progress toward enhancing visibility into agency assets and associated vulnerabilities.”[2]
A binding operational directive is a compulsory direction to the executive branch, departments and agencies for purposes of safeguarding federal information and information systems.[3] BOD 23-01 applies to any agencies operating as a Federal Civilian Executive Branch (FCEB) agency such as the Department of Justice, the Department of Education, and the Department of Health and Human Services.[4] The directive also applies to any entity acting on behalf of a FCEB agency that “collects, processes, stores, transmits, disseminates, or otherwise maintains agency information.”[5]
BOD 23-01 focuses on (1) asset discovery, or identifying what IP-assets reside on an agency’s networks and detecting their associated IP addresses and (2) vulnerability enumeration, or detecting and reporting vulnerabilities on those assets such as outdated software or missing updates.
The directive lists mandatory actions and reporting requirements that FCEB agencies must implement by April 3, 2023. For example, each FCEB agency must perform automated asset discovery every 7 days. FCEB agencies have discretion in determining the method and technology to complete this task, but BOD 23-01 requires that the discovery must cover the entire IPv4 space at minimum. Additionally, each agency must initiate vulnerability enumerations every 14 days. All FCEB agencies must initiate the collection and reporting of performance data within 6 months of the publication of BOD 23-01 in order to allow CISA to automate oversight and monitoring. Collectively, these actions enhance an agency’s ability to automatically detect vulnerabilities and prevent exploitation of any weaknesses in their networks. Read More
While no two divorces are alike, high net worth divorces often have complex financial issues that require specific expertise. Think about it, if you had a parent who thought they had cataracts, you would not suggest they go see their internist. A neighborhood ophthalmologist that treats all sorts of eye diseases would be better. However, a doctor that specializes in geriatric eye diseases and has treated thousands of patients for cataracts, would be the best choice. They would know the diagnosis quickly, be able to explain the process, the risks and the recovery and how best to treat if something goes wrong.
Divorcing your spouse in a high asset case is like removing the cataract. Well, not exactly.
But you do need an attorney that understands how businesses are valued, restricted stock units and other equity awards are divided and taxes are impacted by the division of certain assets.
Yes, an attorney can hire a forensic accountant or value expert to assist. However, if the attorney cannot spot the issues, ask the right questions and analyze the information in light most favorable to you, it is like taking a knife to a gunfight.
More and more, the high net worth divorces I see involve a prenuptial agreement. Again, this is where expertise comes in. Attorneys that only handle “house and pension cases” may be at a disadvantage when it comes to evaluating the enforceability and interpretation of the document. And, if the parties decide they want to attempt reconciliation, a postnuptial agreement may need to be drafted.
What if you do not think your case is high net worth enough to hire a specialist? The beauty of hiring an attorney that has experience in high net worth divorces is that they will understand your case and be able to handle your issues efficiently and with confidence. Read More
Takeaway: In many data breach cases, a cybersecurity expert may evaluate whether the company’s security measures were reasonable and appropriate or, alternatively, if the company lacked the requisite technology to detect a breach. In some circumstances, however, a party’s proposed expert may be challenged on the basis of unfair prejudice. Yet, under the Third Circuit’s “generally liberal standard of qualifying experts”, such a challenge was recently overcome by a party whose expert had advanced IT credentials, 20+ years of relevant professional experience, and offered an opinion with probative evidentiary value that outweighed any danger of unfair prejudice.
Key Points: Rule 702 of the Federal Rules of Evidence sets forth the standards for admissible expert testimony. As explained by the Third Circuit Court of Appeals:
“Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge [, i.e., reliability]; and (3) the expert’s testimony must assist the trier of fact [, i.e., fit].”[1]
Regarding the first requirement, qualification, the Third Circuit has stated that it has “a generally liberal standard of qualifying experts.”[2] “Rule 702 requires the witness to have ‘specialized knowledge’ regarding the area of testimony. The basis of this specialized knowledge can be practical experience as well as academic training and credentials.”[3]
When addressing the second requirement, reliability, the Third Circuit has derived from the seminal case of Daubert the following non-exclusive factors for determining reliability:
“(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.”[4] Read More
May 17, 2024
Pietragallo is pleased to announce that 24 lawyers have been named to the 2024 Pennsylvania Super Lawyers and Rising Stars list. Read More
