Wednesday, September 10, 2014

What You Should Know About Protective Orders

In my last post discussing the Ray Rice situation, I mentioned that protective orders are something that are typically involved in similar situations.  This post is to give you more information on protective orders, what they are, who needs them and where you can get them.  If you think a friend or family member may be in need of a protective order, please share this information and/or contact your local services group for help (see below for more information on that). 

Protective orders are a court orders that are put in place to restrict contact between two or more people.  To be granted a protective order, you must prove to the court that there is threat of imminent (very near future) harm by someone.  There are three major steps to obtaining protective orders.

First, you can go to your local magistrate's office and request an emergency protective order.  These typically last for three days and expire at 11:59 p.m. on the night of the third day following issuance.  These are issued "ex-parte" meaning the person whom you believe is a threat to your safety does not have notice of the proceeding and is not present when you request the protective order. 

The next step is to obtain a preliminary protective order.  This means, within the three days that the emergency protective order is in effect, you appear before a judge (in general district court if it is not a family member or in juvenile and domestic relations district court if it is a family member or someone you live with).  You, again, have to prove that there is the threat of imminent harm.  If the judge issues this protective order, it will be in effect for approximately 15 days.  Within those 15 days, the court will hold another hearing for another protective order.  In the meantime, the person whom the protective order is sought against (the person you believe is going to harm you) will be formally served and notified of the protective orders and proceedings and will be given the opportunity to appear at the next hearing and be heard on the issues. 

At the next hearing, which is likely the last hearing that will be held, the court will hear evidence from you and the other person as to whether or not there is a threat of imminent harm to you.  If the court finds you are in imminent danger, the court can issue a protective order that will be in effect for two years.  If, after those two years, you believe you are still in danger, you can seek to have it extended or go through the process again to obtain a new two year protective order.

Typically, you can include any family member or person who resides with you as people protected by the protective order.  For example, if you have a child who lives with you, you can include that child in the protective order so that the other person who is the threat of imminent harm cannot have contact with that child as well. 

Protective orders, if granted, will prohibit the threatening person from contacting you in any way.  This means he/she cannot attempt to contact you through email, mail, a third party, etc.  It may also include a provision that the person is to stay a certain distance away from your work and/or home addresses. 

While the process may appear somewhat straight forward, it is a complicated process to have a court actually grant the protective order in your favor.  If you are not granted the protective order, there are limitations on when you can try again.  Given the seriousness of the situations that protective orders typically arise from, you should seriously consider seeking legal advice and/or representation by a capable lawyer. 


**NOTE: If you need additional services and are the victim of domestic or sexual abuse, there are many area organizations that may be able to assist you.  The contact information for those organizations are listed below.
Greater Richmond Regional Hotline: (804) 612-6126
Hanover Safe Place: www.hanoversafeplace.com
Richmond YWCA: www.ywcarichmond.org
Safe Harbor: www.safeharborshelter.com


Monday, September 8, 2014

Understanding the Ray Rice situation

This post may be sound a little off topic from my usual posts but, as a huge Ravens fan, I wanted to share my thoughts on the current situation and I promise to tie it in to my normal themes.

What happened with Ray Rice and his suspension from the NFL?

First, let's go back to where it all started. Ray Rice was accused of assaulting his girlfriend in an elevator in Atlantic City.  Because they were in an intimate relationship, this is considered domestic violence.  From there, legally, two things happened.

First, Ray Rice had to face his charges in the court system.  Because it was a first offense, Ray Rice was able to have those charges dismissed.  To go into a little bit more depth, there are certain laws in certain states that allow someone who is charged with a crime for the first time to complete certain requirements and the charge will be dismissed (you see this in a lot of cases involving drugs).  Now, because it was dismissed does not mean his record is clean.  When a case is dismissed in this manner, the charge will remain on his record.

Second, Ray Rice had to face his employer, the NFL.  Many people are uncertain why the NFL even got involved?  The NFL, similar to many companies, have a code of conduct, meaning they expect their employees to behave in a particular manner.  Assaulting someone is a violation of this code of conduct.  This is an employment law matter, not a criminal matter in this situation.  As a result, the NFL initially suspended Ray Rice for 2 games of the season.

So now what happens with all of this since the video from the elevator has surfaced?  The criminal side of it in the court is over.  We all have a constitutional right that prohibits the government from trying us for the same crime twice.  Since Ray Rice's case has been dismissed, as a result of the first offender law, the state cannot recharge him or modify his sentence.  The employment law side of it, however, might be adjusted.  If there is no "double jeopardy" clause in the collective bargaining agreement, the NFL, the employer, can change Ray Rice's suspension, as they have done.

A third aspect to consider, that I don't believe happened in this case, is protective orders.  Ray Rice's girlfriend could have attempted to go to the court system and obtain a protective order, requiring Ray Rice to stay away from her and prohibiting him from communicating with her.  If you are in a similar situation, you may want to consider seeking a protective order.  

This may be a bit oversimplified but to sum it up, Ray Rice's charges of assault have been dismissed and will remain dismissed but the fate of Ray Rice in the NFL is still uncertain and not looking good at this point. 

Thursday, August 28, 2014

4 Things You're Doing that is Hurting Your Custody Case

For many people, custody cases are very tough experiences.  Whether you are attempting to litigate your custody matter yourself or you are being advised by an attorney, here are 4 things you may be doing that is hurting your chances of winning.

Getting emotional in court
Whatever you need to do to remain calm and collected, whether it be see a therapist or having a nightly venting session with your best friend, do it.  You may think that by getting upset in court the judge is seeing how much you care about your child and the circumstances.  However, the judge deals with similar situations all day, everyday.  Showing too much emotion in court may come across as unstable and needy, not as the caring parent that you are.  If you have retained an attorney, talk with your attorney to make sure you know what to expect in court.  That way, there is less chance of you being surprised by something in court and losing your emotions in front of the judge.

Not talking to your child's other parent. 
This is, no doubt, a hard time for you to work with your child's other parent.  After all, you two are fighting over the most important thing in your life: your child.  However, one of the things judges look at when determining custody is the ability of each parent to communicate with and cooperate with the other parent.  Find a way, whether it is by email or weekly phone calls, to keep the communication lines open with the other parent.  And you never know, you may be able to work this thing out after all.

Talking to your child about the case.
There are, of course, exceptions to all of these things.  However, it is generally not a good idea to be talking to your child about the case.  You may see it as keeping them informed; it is their life after all.  However, the courts may view it as you trying to skew the child in your favor or interfering with the child's relationship with the other parent.  And worst of all, despite your intentions, you may be confusing your child and making everything more difficult on them.  If you believe your child needs to talk to someone, set them up with a therapist or ask the guardian ad litem for help on easing the process for your child.  

Ignoring the judge.
It is hard to hear a judge, someone who does not know you or your child, tell you how to handle a situation.  However, ignoring the judges suggestions or requirements can hurt you long term.  For example, the judge has ordered you attend a co-parenting class.  While you may take this as an insult because you feel you know how to co-parent just fine, think twice before ignoring that requirement.  A co-parenting class may be required by all parties to any court action in front of that judge.  If you don't attend the co-parenting class, you are not going to be able to convince the judge you know better than he or she; you ARE you going to convince the judge that you are not willing to abide by the rules in an effort to obtain the best circumstances for your child.



While you may have the best interests of your child at heart, remember the judge can only take into consideration the evidence you present.  By doing the above four things, you are essentially showing the judge evidence that hurts you.  It is always wise to talk with an attorney before you do anything related to a custody case.  If you are involved in a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, August 27, 2014

Should my Will be notarized?

While I HIGHLY recommend you work with a Virginia licensed attorney in creating a will, trust, power of attorney, advanced medical directive or any other estate planning document, I also recognize not all of you will.  If you are working with an attorney, it is highly likely your Will will be notarized.  If you are drafting it yourself or using some online program, should you have it notarized?

Legally, there is no requirement that a will be notarized.  It must, however, have two witnesses who are unrelated to the will.  You should list their names in print and their address so that they are easier to track down if there is a challenge to your will. 

So, if legally you don't need it to be notarized, why are attorneys notarizing the wills they draft?  This is over-simplifying the issues but to be brief: it is much more difficult to challenge a notarized will than a non-notarized will.  A notarized will becomes "self-proving", meaning that you don't need your witnesses to appear in court to testify that they did, in fact, witness you signing the will.  In addition, the notary can act as a back-up witness.  For example, if one of your witnesses did not properly witness the will or is unavailable to testify to the validity of the will, the notary may be able to act as a witness in addition to the two witnesses listed on your will. 

It may be a bit more of a hassle to have a will notarized but in the long run, it affords your Will added protection and will likely make the process easier on your loved ones. 

If you are looking at drafting a will or other estate planning document and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, August 19, 2014

How do I get a custody or visitation case started?

This is usually how a custody or visitation case starts: a parent thinks to himself or herself "I have a child and I am not in a relationship with the other parent; I know something needs to be done to formalize some sort of arrangement but what do I do?"

First, you'll need to figure out what court you should be looking at (read here for more information on that). 

Next, you'll need to determine what it is you want to formalize. 

Do you know who the father is or do you know that you are the father?  If not, you may need to file a petition for adjudication of paternity.  This is typically a form that you fill out in the Juvenile and Domestic Relations Court asking the court to order a paternity test (DNA test) to determine who the father of the child is.  Once the test is complete, you would then be asking the court to "order" that whoever that person is, is the father of the child. 

Once the father is determined, what do you want done?  Custody is divided into two parts: legal custody is the determination of which parent, or both, gets to make major life decisions on the raising of the child (what religious denomination, what doctor, etc.)  Physical custody is who the child resides with the majority of the time.  If you want the court to determine these types of issues, you will need to petition the court to determine custody. 

Visitation is a separate issue and determines how much time and when the child will spend with the parent he/she does not permanently reside.  If you want visitation to be determined, you will also need to petition the court to determine visitation. 

Typically the final issue parents want a court to decide is child support.  This is the amount of money the parent with whom the child does not regularly reside will pay to the parent with whom the child resides the majority of the time in order to support the child.  This money is for the support of the child but is paid to the other parent, not the child directly.  This amount is typically determined by a formula but can be adjusted for various reasons. 

To sum it up, if you want everything to be determined and formalized, you will need to 1) petition for paternity, 2) petition for custody, 3) petition for visitation and 4) petition for child support.  These, most likely, will technically be different cases but will likely all be heard in the same hearing and a determination will be made on all in the same day (occasionally this is not possible and there will be separate hearing dates).  These are simply the documents to get the process started.  From here you will need to be able to prove your case and show the court what the best interests of your children are and how you want these cases to be determined. 

If you are going through a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, August 11, 2014

Does your custody order address the school year in enough detail?

Summer is coming to an end and, inevitably, you and your ex-spouse have had to work together to make the custody arrangements work throughout the summer.  The school year is now approaching; are you and you child's other parent on the same page with how things will work?  Talking through the details and making sure you have a clear understanding will help your child maintain stability and a sense of normalcy as the school year begins.  Here are a few things you may need to discuss and/or have the court address:

1.  Weekend visitation: What time does weekend visitation start and end?  Are the times you have used in the past still appropriate to allow the child enough time to prepare for the beginning of a new school week each week?  Have you discussed and is there an understanding about when the child will complete any homework he has over the weekend? 

2.  Sick days:  Have you and your child's other parent discussed what will happen if the child is sick?  Will the responsibility fall on the parent who has the child in his/her care and custody at the time or will one parent always take off to stay with the child? 

3.  School functions and reports:  Will you and your child's other parent attend school functions together?  Will you both go but attend separately or will you alternate school functions?  The same goes with parent-teacher conferences; who will attend and what role will each parent play?  Who will have primary access to report cards?  Did you list the other parent as a parent with the school so that he/she may have access to school records?

4.  Extracurricular activities:  What happens when your child decides he wants to join the soccer team and has games every Saturday morning?  Will the child attend his games regardless of which parent he is with or will one parent not allow the child to attend the games during his/her visitation time?  Who is going to pay for these activities?

Custody orders provide you and your child's other parent with a basic structure of how the child's life will look.  They do not, however, provide every detail and issue that you may encounter.  They also may lose their applicability as the child grows older and the circumstances change.  It's important, as early as possible, to develop a communication system with the other parent (whether it is by phone, in person meetings or emails) to figure out the details and make sure every understands the arrangements.  If you are unable to come to an understanding and agreement, it may be time to look back to the courts for additional help.

If you are involved in a custody or divorce dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Thursday, July 24, 2014

What can employers NOT fire you for?

In Virginia, employment is "at-will".  But what exactly does that mean?  It means employers can terminate you for just about any reason or no reason at all.  There are, however, a few exceptions to this rule.  So what exactly are the reasons that employers cannot use to fire you?  Here's a list of a few of those reasons:

1) Age - you cannot be fired because you are a certain age (typically, these cases involve older employees rather than younger employees)
2) Gender - you cannot be fired because you are a woman or because you are a man (this typically extends to things that occur because of your gender such as pregnancy)
3) Race/National Origin - you cannot be fired because you are of a certain race or national origin
4) Disability - you cannot be fired because you have a disability
5) Religion - you cannot be fired because of your religion or your religion practices

On top of these reasons, you cannot be fired in retaliation for opposing firings or discrimination based on the above listed categories.  For example, if you participate in a co-worker's discrimination case in support of the co-worker, your company cannot fire you for doing so.

These cases are very fact intensive and there may be other limitations on your company terminating you that are not listed above.  If you believe you have been discriminated against or wrongfully terminated, it is best to contact an attorney to discuss your situation.  If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.