Sunday, July 31, 2011

Your Facebook Page Could Hurt Your Case

There is a modern wisdom, "Be careful what you post, it could come back to haunt you in the courtroom." In this day where everybody has access to social media through Facebook, Twitter, Myspace and even blogs, it is astonishing the things that people are willing to put on line. Some people are willing to make statements they would never dream of stating in person or even in a letter. Still even more will communicate the most intimate secrets in a public "wall" page or chat room. Online users are willing to admit everything from extramarital affairs to criminal conduct. Spouses will bicker with one another on Facebook and carry on a torrid affairs all the while their "friended" children can read. Every day these same people are surprised when they are confronted with the details of their behavior in the form of printouts of their social media activity.

Social media is not private. No matter how much you restrict the access of the material you post, it will still come back to haunt you in court. First, social media outlets routinely cooperate with law enforcement agencies and will provide information to investigators and prosecutors. Second, social media posts are subject to subpoena and would be tuned over to an attorney who is not working on your side. Third, no matter how private your settings, there is inevitably somebody on your list of friends who is going to share your innermost secrets with somebody you would rather not find out.

However, for all the same reasons, social media is a goldmine for investigating just about any kind of case. Many people do not bother to secure their posts and are willing to gloat, brag and boast about anything and create some valuable sources of evidence. It is important to secure this evidence as soon as it becomes available. In many cases valuable evidence is posted and can be lost just as quickly as soon as the author realizes the vulnerability of their private thoughts. Make sure to save and print these valuable nuggets of evidence as soon as they come into your possession.

Before your post, think twice. Think about how you will feel answering questions about the post in court. What you put up on Facebook or any other social media outlet can and will effect your case and usually negatively. The best course of action is to not post.

Wednesday, July 27, 2011

What Effect Does Fault Have in a Divorce?

by: Eric A. Ballinger, Esq.

The issue of fault is a complex when it comes to divorce. It usually is the straw that breaks the camel's back with regard to ending the marital relationship. While some refuse to recognize role that their own fault plays in the dissolution of their marriage, many are surprised at the roll that fault plays in the outcome of their divorce. In the modern divorce, fault plays a roll in determining the outcome of a divorce case, but it is not the sole decisive fact.

Into the late Sixties, fault was an essential element in a divorce case. Until the Georgia legislature adopted the "no fault" ground for divorce, there was a requirement of fault by one party for a spouses to divorce, even if they agreed that the marriage should be dissolved. In the modern divorce, there is no requirement of a finding of fault for the parties to divorce, however the issue of fault is legally relevant in deciding the issues that are ancillary to the divorce, division of assets and debts, alimony and even child custody.

Usually fault, adultery, alcoholism, drug addiction, abusive behavior and the like, are the facts that motivate a spouse to seek a divorce. These are usually the most emotional issues of the divorce and motivate the parties to press the issue. However, fault is not the only issue the court takes into consideration in deciding the issues before it and fault must be put into perspective. Many litigants are surprised when they find out that even in the face of a partner that has committed the most despicable acts, divorce is rarely a "winner takes all" proposition and there are no punitive damages in a divorce.

When reviewing the facts in a divorce case, it is important to look at the case from the through the lens that the judge sees the case. One thing to take into consideration is that divorce cases are heard by Superior Court judges. These are the same judges that hear murder, rape and child molestation cases as well in addition to their civil case load. This gives the judge hearing a divorce case a much different perspective than most civil litigants who have never experienced this sort of in their life.

In addition, the Court is weighing many other aspects in deciding the divorce case as well. A mother may have committed adultery, but still is a loving parent who has never exposed the children to her indiscretions. A Father may be a unemployed deadbeat, but if he has no money, how can he pay alimony? A husband may be a functional alcoholic but how will the children feel if he is cut out of their lives? A man my have brutalized his wife during the marriage but what is to be gained if he is left on the street destitute?

The Court also looks at the effect that marital fault has on the break up of the marriage. Is the fault complained of really the cause of the break up of the marriage or is is some remote act from years gone by? The truth of the matter that judges are used to hearing the many gripes that spouses have about each other and figure that in a divorce there is usually more then enough blame to go around. If the fault is from years gone by, the court will very likely treat the act as condoned. On the other hand, if one spouse catches the other in serious misconduct and acts decisively on it, the Court can will treat the issues seriously.

Most importantly, the Court looks at the fault issues as they may effect the minor children of the parties. While judges rarely loose sleep over what happens between adults, they are always looking out for the best interest of the children involved. Children that are exposed to alcohol, drug abuse, violence and even adulterous relationships are at risk. Regardless of the what has transpired between the parents, the Courts will take decisive action to protect children from these sorts of risks.

The effect that the fault issues will have on each divorce case varies. Much of it depends on the evidence presented. It also depends on the individual judge hearing the case. While evidence of fault is not the most important facts the Court needs to hear, it certainly will help the judge decide which of the two parties to inconvenience the most. It is important to consult an experienced family lawyer to help you put the issue of fault into persecutive for your divorce case.

Monday, July 25, 2011

Adoption: Helping to Grow Families.

By: John A. Early, Esq.

Adoption starts as a simple concept: bring child into a family. However, brining that simple concept to fruition is a complex legal path. This article will attempt to inform individuals wishing to travel that path of what they can expect if they choose to adopt.

To begin, note that adoption proceedings take place in the Superior Court of the county where the adoptee resides. The proceedings are very private matters, and courts conduct the adoption process "in camera," which means person not party to the adoption are disallowed from attending. Also, be aware the Georgia Department of Human Resources is the state agency that oversees adoptions. The Department exercises custody and care for those children in need of adoption and helps guide the court when determine proper placement for the child. In the processes of adoption, the Department and the Superior Court will work hand-and-hand to assure the adoption is in the best interest of the child.

The first step in the adoption processes is making sure the adopter is eligible to adopt the adoptee. While most people would see no reason for this type of assessment because common sense dictates the appropriate qualities of both adopter and adoptee, Georgia decided to remove all doubt from the issue by setting the legal parameters for adoption. For a person to adopt another in Georgia, the law requires the person be at least 25-years-old, at least 10-years-older than the adoptee, a residence of Georgia for six months, and financially, physically, and mentally able to have permanent custody of the adoptee. Further, in the event a married person seeks an adoption, then both spouses must petition for the adoption. The only exception to this rule is the "stepparent adoption rule," which allows a stepparent to adopt his or her spouse's child without severing the relationship between the spouse and child.

The second step involves the surrender or termination of parental rights between the biological parents and the child. The parent-child relationship is sacrosanct in Georgia. Before a third party is allowed to adjust that relationship by adopting the child, both biological parents must surrender their parental rights or have their parental rights terminated. The only exception to this rule is that is in cases where the "stepparent adoption rule" discussed above because the spouse of the stepparent does not have to surrender or terminate his or her rights for the stepparent to adopt the spouse's child.

However, in most cases, the biological parents must have either surrendered their parental rights or a court must have terminated their parental rights. The choice to surrender parental rights is solely within the power of the biological parent. The choice must be freely and voluntarily made. In the event both parents choose to surrender their rights to the child, then Georgia Department of Human Resources enters the picture, and will assume custody of the child pending an adoption.

The other means of severing the relationship between biological parent and child is by termination of parental rights. The termination processes, as it title implies, is not consensual, but occurs in those cases where the court determines the mother and/or father is unfit. A court will terminate the parental rights of a biological parent if the court finds there is misconduct on the part of the parent whose rights are being terminated and the court finds termination is in the best interest of the child. If both a court terminates both parents' rights, then the Department will assume custody of the child pending the adoption.

Once the parental rights of the biological parents are terminated or surrendered, a person may petition the Superior Court for adoption of the child. The petition phase involves three steps: filing a proper petition with the Superior Court, responding to objections to the adoption if any are filed, and an investigation of the petitioner by the Department of Human Resource. Because the petition requires adhering to a great many statutory requirements, the petitioner is encouraged to seek legal counsel in drafting and submitting an adoption petition. Once the petition is on file with the Superior Court, the biological parents and relatives are given an opportunity to object to the adoption. The court must here these objections when determining whether the adoption is in the best interest of the child. If the court finds the objections are without merit, then the process continues. Finally, the Department will conduct an investigation into the petitioner, reviewing his or her background, financial status, family status, and other relative information. The Department provides this investigation to the court to assist it in arriving at its determination.

If the Superior Court grants the adoption, it will issue a Decree of Adoption. The Decree has the effect of forever severing the parental connection between the biological parent or parents and the child. Further, the Decree creates a binding relationship between the adopter and adopter akin to the relationship to a biological parent and child. After the decree, the Court seals all the matters relating to the adoption, and the adopted child is thereafter considered and treated as if it were the biological child of the adopter.

The path between desiring and achieving an adoption is long and circuitous. Any person seeking adoption is encouraged to seek the advice of counsel. However, with the assistance of an skilled attorney, navigation of the adoption processes is not only possible, it is done every day, bringing children into families.

Monday, July 18, 2011

The Right to Remain Silent

We have all heard the words over and over on television programs. "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed to you at no charge." These words have been so stirred into our popular lexicon that there meaning has evaporated. For the most part, we are more worried about having our rights read than what our rights really really mean. In reality, the Miranda rights are seldom read at the time of an arrest and are only required to be read when the police are going to question a suspect.

The right to remain silent, or the right against self incrimination, is one of our most important constitutional safeguards. It is guaranteed to us both by the Fifth Amendment as well as the Constitution of the State of Georgia. The right against self incrimination frees us as Americans from hours of harassing, arduous and even tortuous interrogation by the agents of our government. However, this right is most important in its subtleties. It is easy to remember to, "take the fifth" when a uniformed police officer is screaming in your face. It is another thing to keep that same right in perspective when a detective is just trying to get you "tell your side of the story" in order to "clear up the details of the case".

Most people fall into the trap and decide to speak with law enforcement. It is human nature. Most of us are raised to respect authority and law enforcement is indeed authority. Further, most of us feel that if we can only explain the details of the situation, we can "square this situation away". However that is rarely the case. Law enforcement officers are trained to investigate in a very methodical manner. By the time they are calling people in questioning or interviews, they have developed a picture in their mind as what happened and the interrogation is designed to obtain facts that support the theory law enforcement has already developed. If anything, the police are striving to get a confession to bolster an already weak case.

If you are contacted by law enforcement and they want you to come and answer questions, the best thing to do is to contact a lawyer. If you cannot afford to have a lawyer come with you, then decline to speak with the police at all. You still may be arrested for the charges, but chances are, you would have been arrested had you spoken with the police. The difference is your chances of beating the case are much better.