Law Blog

Custody v. GuardianshipCustody v. Guardianship

There are two types of court actions involving the care of a minor child – a custody action and a guardianship action.

Custody involves the care of a minor child by the parents and is handled in Family Court. There are two types of custody – legal custody and physical custody. Legal custody involves the decision-making rights and responsibilities, while physical custody involves the physical time spent with the child. The standard for determining custody is the “best interest of the child”.

Guardianship involves a situation where the court appoints an adult other than the parents to care for the minor child and is handled in Probate Court. There are three situations in which a guardian will be appointed for a minor child – (1) the minor has no living parents, (2) the minor’s parents have had their parental rights terminated, or (3) a minor’s parents are unwilling, unable or unfit. The guardian must always act in the best interest of the child and must make decisions about the child’s education, support and maintenance. The guardianship of a minor child terminates when the child reaches age 18 or when a court determines that the guardianship is no longer necessary, such as when a parent is now willing, able and fit to care for the child and the court finds it is in the best interest of the child.

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Common-Law MarriagesCommon Law Marriage

MYTH: If you live with your significant other for a certain amount of years, you are considered married through common-law marriage.

FACT: Missouri does not recognize common-law marriages.

Missouri Statute 451.040 says that “[c]ommon-law marriages shall be null and void”, meaning the marriage has no legal effect.

However, there has been Missouri case law that has recognized common-law marriages contracted either before 1921 or contracted in another state that recognizes such marriage as valid.

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Jury ServiceJury Service

A family member received a letter in the mail recently that requested her presence for jury service. While she had previously been through the process, many have not and that letter requiring your presence can cause a bit of confusion of what is to come.

The first question is often “why me?” The process by which you were selected varies by jurisdiction but each has a common purpose, which is to bring qualified people into the jury pool that will represent a fair cross section of the community. In order to do this, a large database exists in which names are randomly pulled to send letters for jury service.

Two types of juries exist. One is a grand jury and the other is a trial jury, also known as a petit jury. Due to recent events, the term grand jury has been used quite frequently. Practically speaking, a grand jury is a group of people chosen to meet regularly (usually once a week) during a certain time frame (usually around 6 months). The grand jury will hear evidence regarding possible crimes and will decide whether sufficient evidence exists in order to bring charges.

A trial jury on the other hand is selected for a specific trial in which an issue of fact will be decided (civil or criminal). Length of trials can vary greatly from days to weeks and sometimes even months. Generally, however, trials last less than a week.

The next question is often what will happen when you arrive to court. When brought into a courtroom on a day that a jury is selected, a large pool of people will arrive. The day will usually start very early and will begin by having everyone watch or listen to information regarding the process. Jackson County’s video for jury service can be found here – http://www.16thcircuit.org/jury-orientation-video. This large group of people will then be broken up into smaller groups that are sent to a specific courtroom for jury selection regarding the specific case, also known as voir dire. This process includes the attorneys asking the jury pool a variety of questions.

While many think that remaining silent will aid them in getting to go home without serving, this is often not the case. When questioning prospective jurors, attorneys are looking for bias or prejudice that would cause someone to not be fair during the trial. At the end of voir dire, the jury is selected (usually consisting of 6-12 individuals depending on the type of case).

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Five Reasons You Should Have an Estate PlanEstate Planning Liberty Missouri

Often times discussing a person’s estate can be difficult. Whether it is because of a busy life or a sad feeling that overcomes one when discussing death, it can be challenging to take the steps to initiate a plan.

An estate plan is more than having a will to indicate whom you want your house or car to pass on to. An estate plan can include a combination of documents including a will, trust, power of attorney and more. While there are many more reasons, below are five reasons why individuals decide to take the steps to set up an estate plan.

1) Having an estate plan will ensure that your property goes to whom you prefer.

Whether you want your property to pass to your family or to a charity that you support, having an estate plan avoids your property passing through a set of laws that choose where your property goes when you don’t have a will, which may not dispose of your property as you would have wished.

2) An estate plan helps to protect your children.

If you have minor children, an estate plan allows you to indicate to the court who you would like to care for your children should something happen to you. Without this, a court may appoint someone you would not have picked yourself. If you have adult children or others in your family you want to specifically protect, you can plan to ensure their education or specific needs are taken care of.

3) Estate planning allows you to indicate your wishes in case of incapacity.

An estate plan can allow you to describe your wishes and indicate whom you would prefer to make decisions for you, both medically and financially, should you become incapacitated. Without the necessary documents in place, a family or friend may be stuck with the tough decision of guessing your desires since you did not indicate what your desires were.

4) An estate plan can save you and your family time and money.

Planning now can avoid time and money later by avoiding things such as probate, taxes, or having to initiate certain court proceedings. Without an estate plan, children and family can be stuck in what may seem as never ending court proceedings that could have been easily avoided had the proper steps been taken.

5) Finally, an estate plan saves your surviving friends and family from added stress and conflict.

Having a plan in place avoids your family and friends from guessing what your wishes would have been, including decisions about your funeral arrangements, how you want your property divided, or who you want to care for your children.

While conflict seems to be inherent in certain situations, having an estate plan can provide a means to reduce conflict, effectuate your wishes and avoid unnecessary costs and delays.

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Can a cop search my car?

Traffic Stop

Once in a while as you drive down the road you see a cop completely submerged in a vehicle. The question that might come to mind is, “could he search my car?” While many may think that the officer needs to have a warrant, this is not always the case. Since a car is mobile and courts have ruled that we have a lesser expectation of privacy in a vehicle, a warrant is usually not required.

In most cases, for a cop to search your car, he must have made a valid stop and must have probable cause to believe it contains contraband. What probable cause means would depend on the situation at hand but could range from seeing an illegal item to smelling a suspicious odor. The officer may search the whole car once he has probable cause.

Police may also conduct a search incident to a lawful arrest, meaning that he may search not only the person arrested but also the area immediately surrounding that person, such as the car.

Consenting to a search, on the other hand, allows a search to take place even though an arrest did not occur and even if probable cause may not exist.

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Mom v. Dad: Who will be awarded custody?

There is a common misconception that mom’s are the preferred parent when it comes to awarding custody.

In Missouri, the court determines custody in accordance with the best interests of the child by looking at a number of factors, including but not limited to:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved…;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian…

These factors come from Missouri Statute 452.375, which deals with custody.

While it may be the result that a mom is awarded custody in a certain case, custody is determined on a case-by-case basis and there is no preference by the courts for one gender over the other.

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Who Brings Charges?

A conversation brought to light some confusion surrounding criminal charges. Often times the question is asked, “Would you like to press charges?” This question, while insightful, is not determinative as to whether charges are brought.

What the officer or the prosecutor is essentially asking is, “would you be corporative in assisting the State if the prosecutor decides that bringing charges is appropriate?”

When deciding to bring charges the ultimate decision maker is the prosecutor. When doing so, one major consideration is whether the prosecutor would be able to prove each and every element of the offense beyond a reasonable doubt. Prosecutors are ethically bound to only pursue charges when they, in good faith, believe that the evidence is sufficient to find the suspect guilty of the charged offense.

There are a number of other considerations when deciding whether to charge a suspect including the victim’s cooperativeness, the credibility of witnesses and even the publicity surrounding the crime.

The prosecutor has quite a large amount of discretion in deciding to bring charges and when charges are filed the decision to do so is likely based on a number of reasons.

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Amend or Not Amend?

Speeding TicketWe receive a number of traffic ticket amendment requests. The question has been asked what the benefit to amending a traffic ticket is. The answer is really two fold. First, Missouri utilizes a point system that keeps track of what offenses have occurred. Too many points can equal a suspended license. Second, and most important to most people who amend a ticket, is that insurance providers audit your driving record periodically and will increase your rates depending on the infraction received. By amending your traffic ticket, you will pay an increased amount at first but that will be significantly less in most cases compared to the increased insurance costs over time.

Missouri provides a list of what points will be assessed –http://dor.mo.gov/forms/899.pdf and Forbes recently wrote an article covering the various insurance increases depending on the ticket received –http://www.forbes.com/sites/jimgorzelany/2014/04/01/traffic-tickets-that-trigger-the-biggest-insurance-rate-boosts/.