Joint Custody


I get asked many questions concerning visitation, overnight stays and custody. In the state of Missouri, my practice focuses on the Father Parent. I believe that Fathers often carry an unequal burden perpetuated by old laws, social biases and extremely difficult mothers. I have seen  fathers become drained from excessive child support thus making it impossible to afford a lawyer. Though I have Mother clients, I stand for justice in every aspect of the law and I believe Fathers are a class of people who the law does not equally work for. This article will hopefully shed some light on a Fathers already existing rights as a parent, and some steps to take to get more as a pro-se person in the state of Missouri.

ESTABLISHING PATERNITY

Paternity must be established in order to pursue your custody rights. Paternity is established in 3 ways:

  1. Paternity is acknowledged by both parties and father’s name appears on the birth certificate of each child in question.
  2. An administrative order was entered that determined paternity for each child listed in the judgment.
  3. Father and Mother were married at the time of the birth of each child listed in the judgment and there are no other existing custody judgments.

***One important fact to note is that a Father automatically has joint physical and legal custody of his child at the time of birth if he signed the birth certificate or is married to the mother at that time. If a Father has not gone through legal proceedings to establish custody or a visitation schedule, then he may have as much time with the child as he so pleases and it is not kidnapping.

JOINT CUSTODY

In any proceeding involving a child the state of Missouri (most states) determine what is in the best interest of the child. This test includes factors such as; health and safety, emotional needs, Co-parenting skills, Etc.

Form CAFC201- Petition for child custody is available through the Missouri Court website [www.courts.mo.gov/file/CAFC201-custodypetition-v14.pdf]. This website also makes available any other family law petition anticipated in litigation.

Now that you have the tools to make prayer for joint custody, you must know the things that can interfere or all together prevent you from exercising your right as a parent;

RSMO 452.375.3(1) (a-g) and (2) gives a complete list of crimes where the child is a victim that will prevent one from establishing custody.

CO-PARENTING 

This article provides resources to better navigate and understand the legalities of parental rights. However, what I really wish to impart to the reader is the importance of co-parenting. I have witnessed first hand the influence  co-parenting or the lack there-of can have over the child. As parents, it is your duty and obligation to keep your child’s safety and health (mental) at the fore front of every decision. There are options such as parenting plans that a Mother and Father can come up with together that can cover everything; visitation, custody and child support, even down to the hour of tv time. Give your children the best opportunity at a healthy and happy life.

Contact #NubyLaw to serve your family!

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Preparing For Your Lawsuit

I have met many clients who have viable cases but have not taken the appropriate steps to overcome a summary judgment. This article is dedicated to educating the client  to prepare for your Employment Discrimination Lawsuit. The information listed below is general and may not describe or discuss the steps needed for more intricate cases. 

Step 1: MAKE A FORMAL COMPLAINT

Though one can skate by on a verbal complaint of discrimination it is best practice to make a formal written complaint. A formal written complaint makes for better organization of thought, accurate dates, and most importantly EVIDENCE.

Step 2: KEEP A WRITTEN TIMELINE

In most discrimination cases one is trying to meet the burden of a balancing test. The balancing test weighs whether the discriminatory conduct is severe and outrageous or whether the discriminatory conduct is frequent. If you are only experimenting micro aggressions or passive discrimination then a timeline is your friend!

Step 3: MAKE A CHARGE WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN YOUR STATE

Fear of making a charge accounts for most discrimination taking place. I’m not blaming the victim,  I am saying the discrimination won’t end until you seek help!

One must make a charge before you can sue an employer/ company for discrimination. It is best to seek legal counsel at this point.

Step 4: REPORT ANY RETALIATION

It is unlawful to retaliate against an employee for making a charge of discrimination. If you find your work hours have been cut or you’ve been terminated, demoted, having to perform more arduous task or even being talked to about the charge then your employer has unlawfully retaliated! If retaliation takes place be sure to amend your charges. 

Step 5. AMEND THE CHARGES

Every time your employer or an employee in the work place discriminates or retaliates against you- amend the original charge! This will go to that balancing test prong of frequency.

Step 6: BE PATIENT

Discrimination cases can span anywhere from 6 months to 3 years because the potential monetary damages are so high. Be patient, continue working (this is not your lottery) and persevere. 

Contact #NubyLaw to serve your rights! 

 

The Pros and Cons of Plea Bargains

You have likely been exposed to at least the idea of a plea bargain through main stream media. Our society depicts plea bargains in movies as the “informants deal”. This idea, though applicable to informants, is a bit misleading. This blog is geared to help the reader understand what a plea bargain is and the pros and cons of taking a plea bargain. 
A plea bargain is an agreement set up between the plaintiff and the defendant in a criminal case to come to a resolution without ever taking it to trial. (Black’s Law Dictionary.) A plea bargain is the equivalent of a civil settlement agreement. Neither party gets exactly what they want- but the benefit of the bargain outweighs the burden, expense or risk of trial. 

 Plea bargaining results in defendants’ pleading guilty or nolo contendere (a plea in which the defendant does not contest the charges, but which carries the same primary consequences as a guilty plea) in return for a stated sentence, agreement not to request more than a certain sentence, or dropped charges.

A plea bargain can cover 4 main topics as discussed by Janet Portman in Criminal Defense Lawyer;

Charge bargaining; The defendant pleads to a crime that’s less serious than the original charge, or than the most serious of the charges. 

Example: The prosecution charges defendant with driving under the influence, but he pleads guilty to careless driving and the prosecution dismisses the driving under influence charge.

Count bargaining: The defendant pleads to only one or more of the original charges, and the prosecution dismisses the rest. 

Example: The prosecution charges defendant with both public intoxication and assault. The parties agree that dependent will plead to the assault charge, and that the prosecution will dismiss the public intoxication charge.

Sentence bargaining; The defendant takes a guilty or no contest plea after the parties agree what sentence the prosecution will recommend. 

Example: defendant agrees to plead guilty to the charge of misdemeanor resisting arrest, and the prosecution agrees to recommend that the judge not sentence him to jail time.

Fact bargaining; The defendant pleads guilty in exchange for the prosecutor’s stipulation that certain facts led to the conviction be omitted. The omitted facts would likely have increased the sentence because of sentencing guidelines. 

Example: The government files an indictment against defendant for drug trafficking. Federal agents caught him with over five kilograms of cocaine. Five kilograms triggers a sentence involving many years in prison, so defendant agrees to plead guilty to the offense in exchange for the prosecution’s stipulation that he possessed less than five kilograms.

Pros of taking a plea bargain

  • Not immediate risk of jail time
  • Less expense to the client
  • If SIS (Suspended imposition of sentence) plea bargain is completed no conviction on record 

Cons of taking a plea bargain

  • Still have to admit guilt 
  • Will be monitored by court and have to pay for probation
  • Required to fulfill terms of plea bargain or risk of going to jail
  • In the “system” for term of probation

A defendant who pleads guilty must admit guilt.  This person loses the chance to convince the trier of fact, be it a judge or jury, of his lack of guilt. It is the defendants sole right to accept or deny a plea bargain and your attorney should explain the terms of such plea bargain in complete and full detail. If you have questions do not be timid to ask- YOUR FUTURE DEPENDS ON IT!

Illegal Searches; Warrantless Searches

Our right to be free from unreasonable search and seizure is found in the 4th amendment. In our society, the police and state agencies have always been able to circumvent  our rights because we don’t know how to protect ourselves. This blog explains a few Warrant Exceptions the police and other state agencies can exercise. This article is not even 1/4 of the information concerning our 4th amendment rights,warrants and warrant exceptions. However, it is aimed to engage and educate the driver and the driver’s passengers. 

In the past, evidence obtained during and illegal search or seizure could not be used against you. This Doctrine is called the “Fruit of the Poisonous Tree.” However new precedent (case outline below), has virtually done away with that long held doctrine in certain circumstances.  

Please protect yourselves with knowledge!

Warrant Exceptions 

Search Incident to Arrest:  

  1. person must be arrested
  2. arrest must be lawful 
  3. person must be reasonably contemporaneous in time and place with arrest 
  4. The search must not  exceed body and “grab area” or wingspan (area must be within suspect’s immediate control)  

Cases:  

Chimel  v. California (p. 335):
An arresting officer (probable cause arrest) may search only the area “within the immediate control” of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Any other search of the surrounding area requires a search warrant. Closed containers within the wingspan are also suspect to search. 

Automobile Search Incident to Arrest:

If you are stopped for a traffic infraction you must remember that the Entire passenger compartment and contents of any containers, Trunk not included,can be searched. However, there
must  be probable cause “PC” for the original arrest to do search INCIDENT to arrest.

 Cases:

New York v. Belton:  When a police officer lawfully makes a custodial arrest of an automobile occupant, the officer may search the entire passenger compartment of the vehicle incident to the arrest, including containers and occupants. (but no trunk)  

Thornton v. U.S.: Officers may search vehicles upon arrest if they have reason to believe that evidence “relevant to the crime of arrest” might be found in the vehicle, inside or next to car.

Wyoming v. Houghton: Police may search containers within the scope of the probable cause they have developed, regardless of who owns those containers (even passengers).

Consent

The police often surpass our 4th amendment right to be free from unreasonable searches (without warrant) because we  give them consent. Consent is a dangerous animal that only seems like you can pet it. Once you let consent out of its cage, it can turn very vicious. However, the state much show that consent was given voluntarily and without coercion. In order to fight an invalid consent use the totality of the circumstances to show coercion; things like education, intelligence, lack of advice, deprivation of food or water, sleep etc.

Police do not need a warrant or probable cause to search if they have your consent to search. The consent must be voluntary. The Person consenting must have authority or reasonably appear to have authority to consent. The consent cannot be a product of duress or coercion.

Cases:

OH v. Robinette:consent does not require a knowing waiver, police need not tell consenter he has a right to refuse.

 Georgia v. Scott Fitz Randolph:  If one occupant gives consent and the other denies it, the police may not enter.  

 United States v. Drayton:Police do not have to inform citizens of their right to refuse a consent based warrantless search.

New Precedent:

Utah v. Strieff: The Supreme Court made a terrible decision to allow evidence obtained by police who’ve made an unlawful stop be considered in an arrest resulting from that stop. The case, centered on a white man in Utah, Edward Strieff, who was stopped by Salt Lake City Detective Douglas Fackrell.

Fackrell had not observed Strieff breaking any laws, but had suspicions that he was trafficking drugs. When the officer took the man’s ID and phoned in his info to dispatch, it turned out that Strieff had a warrant out for his arrest and had a small amount of narcotics on his person. Strieff’s attorneys wanted the arrest and resulting case to be dismissed since the evidence was obtained from an unlawful stop.

In a 5-3 decision, the court ruled that although the stop was unlawful, the evidence obtained from an unlawful stop   can be permitted in some circumstances.
What You Need to Know:

  1. You have the right to be free from illegal search and seizures under the 4th amendment. 
  2. Police and state agencies can circumvent your right in certain situations.
  3. Even if it is an illegal stop, a lawful arrest (warrant exception) can allow for evidence of a crime to become evidence in a trial. 

Call NubyLaw today to help you protect your rights! 

Are You a Victim of Employment Discrimination?


Contrary to popular, misguided, and ignorant belief, discrimination in the workplace is a routine offense. I should know, I have won my clients close to 1/2 million dollars in employment cases in just 1 year!

Employment discrimination can take place in many forms. Under the Missouri Human Rights Commission, discrimination can be based off race, color, sex, sexual preference, disability, age, genetic background and heritage. Such discrimination occurs when one is being treated differently than another designation: often White/Caucasian race and Christian religion. 

Discrimination is a Chamaeleon, easily disguised as favoritism or seniority. Listed below are different scenarios in which discrimination can occur:

Hire: discrimination occurs when someone is qualified for the job but looses the position to someone unqualified for he position.

Working Conditions: discrimination occurs when one’s working conditions are more arduous than another employees who have he same job title and responsobility. 
Accommodations: discrimination occurs when a reasonable accommodation for disability or religious purposes are not met and they do not cause a burden to the employer.

Termination: discrimination occurs when one is terminated for an act that is also committed by other employees without repercussions. 

If you feel like you are being discriminated against in the workplace it is important to report the discrimination to human resources. You should create  a paper trail as an arrow in your quiver. If your working conditions become worse after your report of discrimination then the employer has RETALIATED against you. Another illegal action. 

It is important to exercise your rights. It is important to maintain your dignity as a working class contributor to our neighborhoods, communities and country. Do not sit idly by.

Contact NubyLaw to Protect your Dignity!  

How to Read Your Missouri Driver’s Record

In my last blog “Don’t Plead Guilty” I briefly explained how one can lose their driving privilege. The information provided within discussed how points are assessed against one’s driving record. This article will inform the reader how to read your Missouri Driver’s Record. This article is also likely to help you read any other state driver’s record with similar information.

Every driver, even the unlicensed driver, has a driving record. Some of my clients have never had a license and still have points assessed against their record. The state will “create” a quasi license number for those who have never had a license. How? The state uses  identification information (Ssn/dob/address) in order to charge and convict you of a traffic infraction. 

You can retain your driving record by calling the Missouri Department of Revenue. It is likely that an agent will explain the information on your record to you, however knowledge is only power when it belongs to YOU!

On the example driving record you can see (from right to left)the: 

  1. date; which informs of when the charge became a conviction
  2. points (pts); number of points the conviction put on your record
  3. conviction/action taken against the driver; this sections tells you what the ticket was for or what action the state took against your driver’s license 
  4. status of the charge or action;this is very important! An ACTIVE status means you still have to go to court in order to either get the tickets amended or plead guilty. If you plead guilty the conviction will take place. You may also see “reinstated” or “terminated” these statuses usually mean that your driving Priviledge was suspended and it was reinstated or the suspension was terminated. 
  5. conviction date; the date your plead guilty or payed the ticket
  6. violation date; the date you received the charge or got the ticket
  7. case; the case number
  8. UTT (ticket number); the identifying ticket number
  9. the agency or court that issued the charge; this is also very important! This indicates which court your ticket is in. Which may lead to the court in which you need a compliance letter to get your license reinstated, or a guilty plea set aside.
  10. the date for eligibility of reinstatement and; if your license has been suspended this date indicated when it can be reinstated
  11. the last time that particular charge was updated. 

You can use this information for a number of reasons. In my practice, I use this record to check how many points my client has before they are suspended, check which courts my clients have warrants in (instate failure to appear sus), see what the license is suspended for, and remove points from the record. The Prosecutor will also use your driving record to measure your penalty. For instance, a driver with two speeding tickets over ten years will likely receiver the lowest penalty. However, a driver with a record like the one dejected will likely make a plea for a two year suspended imposition of sentence probation. 

Contact a lawyer to help you keep your driving privilege in good standing! 

Don’t plead guilty!

Often times I am in a Courthouse in Missouri and hear a pro-se or unrepresented defendant suspend their own license. One can suspend their license several ways, but the easiest and most common way is by pleading guilty to a traffic violation or paying for the ticket. 
A Missouri license will be suspended if the driver has 12 points. Accumulated points stay on your driving record for 18 months. Each moving violation (speeding, no insurance, no turn signal, u-turn, driving while suspended etc.) has a point valuation. These points vary in range from 2 points up to 12 points. 
Here are 3 illustrative scenarios that only reveal the tip of the iceberg when it comes to pleading guilty.

1). Imagine you are pulled over. The cop writes you a ticket for speeding, no insurance and not wearing your seatbelt. That is 4 points on your record! Those four points will stay on your record for 18 months and any moving violation ticket you receive after that will be added to your record  risking a suspended license if you plead guilty!

2).What if you have an accident without insurance? Your license will likely be suspended if you plead guilty. 

3).What if your license was suspended, you got it reinstated in March 2016 but received a ticket for driving while suspended in February 2016? If you plead guilty- it will be suspended again!
A license is a privilege that comes at a steep price. When you accumulate points on your license your insurance rate goes up and you put your driving privilege at risk.
In the state of Missouri, the only way to get points taken off your record or get moving charges amended to a non moving violation is by hiring an attorney. Let a licensed attorney keep your license in good standing!