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Archive for May, 2013

Parental Kidnapping

The recent news story involving Joshua and Sharyn Hakken, a Florida couple accused of kidnapping their children and fleeing to Cuba, highlights the issue of parental kidnapping in the United States.  As divorce rates soar, and contentious child custody battles seem to be all around us, there are more and more instances where one parent flees with the children.  But what happens when the children are removed from North Carolina?  Or even the United States?  What protections are in place?

One safeguard in the United States is the Full Faith and Credit clause of the United States Code.  This provision states that every state will recognize and enforce a custody order from another state.  Practically speaking, this means that if a parent has been given custody by one state, the other parent cannot remove the child from that state, in the hopes of escaping the current custody order.  This provision applies not only in the fifty states, but also in the District of Columbia, Puerto Rico, and the United States Territories.

To address growing issues with international kidnapping, the U.S. Department of State enacted the Children’s Passport Issuance Alert Program.  Under this program, parents can register their children, and will be contacted by the State Department if another parent or guardian applies for a passport for the child.  This is particularly useful in custody disputes where international travel is a concern.  If a parent objects to the issuance of the passport after being notified by the authorities, the U.S. Passport Agencies, embassies, and consulates abroad will be alerted.

Another safeguard put in place to combat parental kidnapping was the creation of The Hague Convention.  The Hague Convention is an international treaty that was enacted in 1988 to specifically address international kidnapping.  Today, the Hague treaty is in place between the United States and 48 other countries.  Under the Hague Convention, any child that is wrongfully removed from the United States (or another participating country of residence) must be returned to that country.  Each participating country has established authorities to process the inquiries and returns.  While this law prevents a kidnapper from hiding under the safeguards of another country’s laws, the Hague Convention may be of little help when the location of the child is not known and the kidnapper is truly “on the run.”

If you are concerned about your child being removed from your state of residence, or feel that someone you know may try to circumvent the courts to prevent you from seeing your child, it is important that you consult with an experienced family law attorney.  In addition to the resources listed above, there are other steps, both in and out of court, which can be taken to minimize the risk to your child and help give you peace of mind.  Contact Mahlum Law Office to learn about all of your options, we can help.

Child Custody: How Does It Work?

Child custody disputes can be one of the most stressful issues surrounding a legal separation or divorce.  What do you need to know?  Where do you start?  A good first step is always to contact an experienced attorney to help you, but it’s also important to know about the process.

Once a custody case has been filed in court, the Judge will consider the evidence presented in court to decide what type of visitation schedule is in the child’s best interest.  All custody cases are heard in the District Courts of the State, before a Judge, not a jury.

There are two main types of child custody – “legal custody” and “physical custody.”  Legal custody refers to who will make major decisions for the child, such as healthcare and education.  Legal custody may be awarded to both parents jointly (“joint legal custody”), or may be awarded only to one parent (“sole legal custody”).  It is not required that a child live with the parent in order for that parent to have legal custody.

Physical custody refers to where the child actually lives.  The Judge may award one parent “sole physical custody” of the child.  More commonly, physical custody is awarded to both parents, so that both parents are said to share “joint physical custody.”  This does not necessarily mean that the child spends equal time with each parent.  The judge will consider all of the circumstances of the case to determine the actual visitation schedule.

In North Carolina, it is required that all parties involved in child custody cases attend a mediation session prior to a permanent custody trial.  At the mediation session, a neutral third-party mediator will meet with both parents in the hopes of creating a visitation schedule that everyone agrees on.  The mediator will not take sides, cannot give legal advice to either party, and cannot force anyone to enter into an Agreement.  If the parties are able to agree on a visitation schedule, the agreement will be put into writing as a “Parenting Agreement.”  This agreement will then be submitted to the Judge for approval, and will become an order of the Court.

If your case does not resolve itself in a settlement agreement, the next step is the custody trial.  At the trial, you must present evidence that supports your side of the case, and you must follow the local rules of court, the rules of evidence, and the rules of civil procedure.  Custody cases can be complicated by issues like domestic violence, allegations of child abuse, non-traditional work schedules, out of state residence, and military deployment.

It is important that you are prepared and organized as you present your case in court.  If you do not have a lawyer, you will still be required to comply with all court rules.  The Judge is not allowed to help you present your case.  After hearing all the evidence, the Judge will issue a custody ruling, which will address issues such as the regular visitation schedule, holiday schedules, and who will have the right to make decisions concerning the child.  Regardless of whether your case settles outside of court or goes to trial, stay focused on your goals and do not be afraid to seek advice.  Contact Mahlum Law Office today if you have any questions or concerns about your child custody case.  We can help.

“You have the right to remain silent…”

Everyone has heard Miranda before on TV or in a movie, if not in person.  Some of you can probably recite the rights.  But when do the police need to read Miranda Rights to someone?

There has been quite a bit of news recently about whether to advise Boston Bombing suspect Dzhokhar Tsarnaev of his rights, and it is a great opportunity to discuss the implications of Miranda Rights.  There are many public policy decisions and issues for Dzhokhar that don’t pertain to the average defendant, but it is a good example.  So, what happens if the police do not advise you of your rights?

Miranda rights are required before any custodial interrogation.  What is a custodial interrogation?  First, it is one where the defendant is in custody.  Many days can be spent in law school debating what “in custody” means, but as a general rule, if you are in handcuffs or in the back of a squad car, you are in custody.  What constitutes an interrogation?  If the officer asks you any questions, it is considered an interrogation (though there are exceptions for basic questions like “what is your name”).

So what happens if you are questioned after you are arrested, but no one reads you your rights? Your case does not automatically get dismissed.  The FBI and Federal Prosecutors would not have asked Dzhokhar questions without reading him his rights if it meant the criminal case would get thrown out.  Prosecutors likely think they have enough evidence to convict him, even if they can’t use what he says during the interrogation.

If you are questioned without being read your rights, your responses to those questions probably can’t be used at trial.  At Mahlum Law Office, we would file a Motion to Suppress and argue to the judge that your rights were violated, and that anything you said during that interrogation shouldn’t be used against you.  If the Judge ruled in our favor, the DA couldn’t use any of the suppressed statements against you.  At that point, whether the DA chose to proceed or dismiss the case would depend on the strength of the other evidence.  If the police witnessed the crime, odds are the DA will still prosecute the charges.  However, if you confessed during a custodial interrogation, and there isn’t any other evidence, it might just be your lucky day.