Factors that may Result to a Modification in a Child Custody Decision

Posted by on Mar 19, 2015 in Family Law | 0 comments

Though states usually differ in some of the factors they consider in the determination of a child custody case, there is one constant principle that serves as a guide in every decision making: the child’s best interest. Child custody is one of the most sensitive divorce-related issues, not only because it concerns the future of another person, but also because many spouses never get to agree on the issue, necessitating a court proceeding wherein a The Woodlands divorce lawyer may argue your side of the story.

After determining who gets custody of the child/children, it is implied that the other parent, the non-custodial one, will have settle for visitation rights in order to be with his/her children (many courts, however, now consider awarding custody of the child to both parents, especially if this decision will be in the child’s best interest). Both custodial and non-custodial parents are expected by the court to abide by and respect all court decisions pertaining to the lives of the children and all court decisions shall be binding unless these are changed by the court itself due to a petition from either of the parents.

Request for change or modification in custody decisions may be honored by the court if the petitioning parent can prove (without doubt) that the current custodial parent fails to live up to the court’s expectations and/or fails in his/her obligation to recognize and respect the rights and personhood of the other parent.

Some of the more specific reasons why an original custody decision may be modified by the court, include: frustration of the non-custodial parent’s visitation rights; estrangement of the child’s affections from the non-custodial parent; change of residence without informing the non-custodial parent; material and substantial changes in the life of the custodial parent (such as his/her remarriage); child’s preference; unfavorable environment; and, relinquishment of custody.

Any parent will naturally do everything for the sake of his/her child, even if it means keeping the child away from his/her other parent, especially if such parent can be proven as unfit. This may not be an easy task though, as it will require legally acceptable and convincing arguments to make the family court judge recognize and accept any new evidences.

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“Real Parties in Interest” in the Event of Wrongful Death

Posted by on Mar 16, 2015 in Personal Injury | 0 comments

Many accidents that occur are due to other people’s reckless or negligent behavior. Of course these are definitely preventable; however, those that do occur and result in injuries or damages can be subjected to civil action to enable the innocent victim to seek compensation from the liable party: a right recognized under the tort law.

There are different types of accidents which can cause injury to a person. These include road accidents involving cars, trucks, motorcycles, pedestrians and bicyclists, use of defective products, slip and fall accidents, work-related accident, dental or medical malpractice, and so forth. The injuries these accidents can inflict also varies, from a mild scratch to something very serious, like a fractured bone, laceration, head injury, amputated limb, damage to the spinal cord, etc. However, the most serious harm that may befall a person is wrongful death.

In a wrongful death situation, a representative (usually a lawyer, but may also be any member of the family) will have to act on behalf of the survivors of the deceased for the filing of a wrongful death claim or lawsuit. While the survivors, legally known as “real parties in interest,” would unquestionably point to the victim’s own family (husband/wife and children) or parents (if the victim is not yet married), some states also recognize certain individuals, who may be considered as among these “real parties in interest.” The lawfully recognized survivors include:

  • Immediate family of the victim: refers to spouse, children and adopted children, while for unmarried individuals, immediate family would refer to parents
  • Financial dependents, like a life partner or a putative spouse: some states recognize a life or domestic partner (who was financially dependent on the deceased) and a putative spouse (a person who, in all sincerity, believes that he/she and the deceased were married) as among the real parties in interest
  • Distant family members: some states also qualify grandparents and siblings in a wrongful death claim
  • All those suffering financially: this stipulation would cover any person who is financially affected and made to suffer because of the death of the victim; this is actually due to the loss of care or support resulting from the victim’s untimely death;

Any legal rights of the surviving family can best be upheld through the assistance of highly-qualified and experienced wrongful death lawyers.

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Insurance Bad Faith

Posted by on Mar 12, 2015 in Insurance | 0 comments

Filing a benefits claim with their insurance provider is most natural for families and individuals to enable them to meet the resulting expenses, such as medical treatment after an accident, or repair/replacement of damaged property after a natural disaster, as well as to keep their heads above water. Such are some of the reasons why insurance policies are purchased in the first place – to serve as a financial buffer during times of real need.

Insurance providers, on their part, owe policy holders genuine commitment or the duty of good faith and fair dealing, especially in paying claims. Under the common law this duty is spoken of as the “implied covenant of good faith and fair dealing,” which ought to be contained in the insurance contract. However, many of these providers transact business with dishonesty or fraud at the back of their minds. They enter into an agreement with policy holders with no real intent of living up to the terms of the policy they sell or they intentionally twist the meaning of something contained in the policy sold. This fraudulent act is what legal experts call “bad faith,” and there are different ways through which this can be committed, like: failure to investigate a claim promptly and thoroughly, unreasonable denial of claim benefits or delay in the payment of claims, and so forth.

The website of insurance attorneys Smith Kendall PLLC explains how and why complications in the insurance claims process often arise, leading to delayed payments, underpayment of claims, or outright denial of claims applications.

In any of these situations, what the disgruntled policy holder needs is immediate assistance from a knowledgeable and experienced insurance bad faith lawyer, who would be capable of ensuring him/her a strong legal representation against the erring insurance provider.

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Criminal Defense: Drunk Driving

Posted by on Mar 7, 2015 in Criminal Defense, DUI | 0 comments

Whether one calls it driving under the influence (DUI) or driving while intoxicated (DWI), or any other name, drunk-driving is a serious offense in all US states, with some states exacting harsher punishments (compared to others states) on offenders.

The gravity of offense has also led to both nationwide and statewide campaigns and programs which, in turn, have spurred law enforcement authorities to aggressively pursue and prosecute anyone committing any type of alcohol-related offenses.

Hpwever, as pointed out on the website of the Law Offices of Mark T. Lassiter, this aggressiveness, has sometimes resulted in “wrongful arrests, mishandled cases, and a variety of other problems and mistakes” which have greatly affected those accused, jeopardizing their rights and freedom.

Both federal and state authorities have never failed in pointing out the dangers of drunk driving: how this reckless behavior places in great risk of a serious accident the drunk driver himself/herself and, more so, all other motorists and pedestrians who share the road with him/her.

Being a serious traffic law violation, those convicted of the crime are, therefore, punished heavily thru costly fines, a jail term, suspension of driving privileges, compulsory participation in an alcohol and drug education class (or DUI School) and community service; it is also possible that he/she may be required to pay higher auto liability insurance premiums.

The painful effects of a criminal conviction, however, do not end during or after the punishments; rather, these go beyond the courtroom and prison cell, following the convicted individual and affecting everything else about his/her person, including career, personal life, community relationship, rights and privileges (such as right to international travel, acquisition of professional licenses) and so forth.

These unjust effects of a criminal conviction make a very strong defense in behalf of the accused an absolute necessity. Contrary to the thought that drunk-driving cases are impossible to win, the website of Cape Cod criminal defense attorney James Powderly says that all have a right to a fair trial, but this should be entrusted only at the hands of a skillful and experienced lawyer.

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Motor Vehicle Accidents

Posted by on Mar 5, 2015 in Motor Vehicle Accidents | 0 comments

While cars remain to be the most common means of transportation in the US, records from the Department of Transportation show that motorcycles continue to gain popularity year after year, with around 9 million having been registered in 2012. When referring to motorcycles, the Department of Motor Vehicles uses the term loosely on any type of two- or three-wheel powered vehicles (including scooters, mini bikes, pocket bikes, three wheelers, mopeds and off-roaders) that have been designed for on/off-road or dual-purpose use.

To be used on public roadways, two things are required of dual-purpose and on-road motorcycles: compliance with federal and state certification standards, and registration (typically, however, light scooters and mopeds – light powered bikes with engines smaller than 50cc – are also allowed to be used on public roadways even without registration).

The safe use of motorcycle and the safety of riders against any type of road accident are dependent on many different factors which may fall within the responsibility of the riders themselves, of another vehicle’s driver, the motorcycle manufacturer or those in charge of keeping roads and highways free of any driving hazards. Some specific examples of these, as mentioned on the website of Habush Habush & Rottier S.C. ®, include defective roads, motorcycle defects or malfunctions, negligent or reckless drivers, intoxicated motorists, distracted drivers, and aggressive driving.

In 2013, the National Highway Traffic Safety Administration (NHTSA) recorded 4,986 fatal motorcycle accidents and another 88,000 mishaps that resulted to injuries. Due to the lack of protection that would shield a rider’s body from the force of an impact during collision, the likelihood of death for motorcyclists is 35% higher than drivers of cars and most of these deaths are due to head injury, which is actually the number one cause of death in motorcycle crashes.

While many motorcycle accidents are due to the rider crashing into fixed objects, many more involve another vehicle, especially one that is turning left without first checking for a possible approaching motorcycle.

An injury resulting from any type of accident that happens due to another person’s negligence, such as getting a concussion, is called personal injury and, the National Center for Health Statistics records about 31 million people sustaining this type of injury every year.

According to the website of the Mokaram Law Firm, seeking the help of legal experts is often an absolute necessity for victims of accidents as this will help ensure that the victim will know and understand his/her legal rights and options, as well as have a strong representation if ever he/she opts to file a civil lawsuit in court.

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Workers’ Comp

Posted by on Mar 2, 2015 in Workplace Injury | 0 comments

Workers’ Compensation laws were passed during the early part of the 20th century to save workers who sustained work-related injuries or illnesses from crippling financial situations that may result from the harm that they accidentally sustained.

Injuries and illnesses, and sometimes even death, were very frequent and most common in construction sites, gas and chemical plants, mills, mining sites and factories where workers used and operated heavy machinery and sharp tools and equipment, or were exposed daily to hazardous substances. Despite the constant danger, those who got injured or sick, in the hope of getting financial assistance, had to resort to suing their employers. Aside from the fact that majority of the lawsuits were decided in favor of the employers, these tort or civil cases also destroyed whatever good relationship existed between the employer and the worker.

The implementation of the Workers’ Compensation benefit, therefore, was a major decision that changed the plight, especially, of low and medium income workers. This benefit took the form of an insurance program and was designed to provide sure and fast financial assistance that would cover the injured or sick worker’s medical treatment, lost wages (due to days of missed work), vocational rehabilitation and death. Workers’ Comp also did away with the need of having to file a lawsuit in order to receive the offered financial benefits and it was given regardless of whose fault the accident-causing-injury was. But, while this Workers’ Comp contained a clause which stipulates the relinquishment of the injured worker’s right from filing a lawsuit against his/her employer for any further legal claims, the law still allows the filing of a lawsuit, especially if it can be proven that the employer had something to do with accident or if the injury were too severe so that the benefit from the Workers’ Comp is not enough (besides the right to file a lawsuit against the employer for additional compensation, the injured worker, so long as he/she is paying Social Security taxes, has earned the required number of credits and if the injury resulted to permanent disability, can also file a claim with the Social Security Disability Insurance).

Getting one’s Workers’ Comp application approved, however, can be a really challenging task due to the many different forms that need to be filled out, the documents (proving the injury) that need to be submitted, the need to file the claims application within the statutory period set by the state, and the resoluteness of those tasked in approving claims to deny applications outrightly simply due to technical mistakes, like a missed information box or failure to affix a signature, or lack of supporting documents.

If injured due to work or if you develop an illness due to exposure to a substance at the place where you work (or worked before), then informing your employer about the situation is essential.

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