You Can’t Always Get What You Want — Or Can You?

http://www.dreamstime.com/stock-photo-pretty-young-girl-tiara-sticking-her-tongue-image6639870We have all read the headlines and gossip magazines about child celebrities suing their parents for the millions of dollars they claim their parents squandered of the child’s earnings.  But what if the child suing their parent is not a talented celebrity and not worth millions themselves?

Recently, a New Jersey Superior Court judge was faced with the dilemma of deciding whether an 18 year-old high school Senior, Rachel Canning, is entitled to monetary support including payments due for her private high school tuition and the expenses incurred due to Ms. Canning’s living with a friend, as well as potential college tuition next year, from her estranged parents.  According to the parents, the teen left their home voluntarily and moved in with a girlfriend after refusing to obey the “rules” of their home, which included such restrictions as a curfew, underage drinking, and their wish that she break up with a boy they deemed to be “trouble.” However, the teenager has a different story. Rachel claims that she was forced from the home after enduring “abuse” that purportedly contributed to her eating disorder that developed as her parents pushed her to obtain a basketball scholarship (reportedly worth $20,000). The judge denied her emergency request for monthly support, past-due private high school tuition, and attorney fees at the present time, but he will revisit the issues of this case, if necessary, later this year. For now, the teenager will remain on her parents’ health insurance and the college fund set aside for her, by her parents, will remain unchanged.

While we don’t have the answers for this tumultuous family, this case has our attention because this time it is not a celebrity child whose own money is at issue, but a child who has sued for money her parents earned to which she believes she is entitled, raising two key questions: (1) What are a child’s rights while living in their parents’ home; and (2) What does the law say about the parental obligations to support their child after the age of majority?

As we all know, children do not have all of the same constitutional rights as adults. Sure, children are afforded the right of due process and the right to counsel, but they lack the physical and emotional maturity to automatically be considered at the same level as adults under the U.S. Constitution.  Most states have a tiered system to assess the age of majority and levels of reasoning, because usually an 8 year-old and a 15 year-old child are not on the same spectrum of maturity. So what happens when a kid doesn’t want to live by their parents’ rules? Tough it out until he or she turns 18 years old, or seek legal emancipation. However, Rachel Canning wants the best of both worlds. According to her attorney she claims to be unemancipated and therefore still entitled to parental support. Her parents claim that she voluntarily left the home and is no longer within their control so should be considered emancipated.

If the court sides with Rachel, the issue will center on the constitutional rights of her parents. The 14th Amendment covers numerous freedoms, including the right to direct the education and upbringing of your children. Over the years, courts have been reluctant to infringe upon those parental constitutional rights without first determining whether the burden being imposed upon those rights – i.e. parents being forced to pay for rent and tuition when their child defiantly leaves their home because they don’t like the rules – is justified by a compelling interest.  In other words, a state cannot infringe upon the fundamental rights of parents simply because a better decision could have been made. And, if the law unreasonably interferes with the liberty of the parents to direct the upbringing and education of their children under their control, it may be deemed unconstitutional.  However, these general rules tend to be less clear or certain when the parents are in the midst of a divorce. Under those circumstances the courts will set guidelines for how much each parent must pay in support of their children living in their custody, including private elementary and high school tuition and sometimes college tuition, so long as certain criteria are met.

So what does this New Jersey case mean for rebellious teens and fed-up parents across the nation? That all depends on whether Rachel’s attorneys are able to prove that she is entitled to anything after she left home. Usually, there must be some special circumstances proven, such as abuse or neglect, to justify the court’s decision to usurp the parents’ independent authority.  So unless the New Jersey court finds evidence that substantiates the teenager’s allegations of abuse and/or neglect, the court is not likely to step on her parents’ toes.

However, the issue of future college tuition may be unrelated to the realm of abuse or neglect. Like most college-bound teenagers, they are faced with figuring out how to pay for college.  Since Mr. and Mrs. Canning did maintain a college fund for Rachel’s future, the presumption is that she has three options available for tuition, assuming she is not awarded a full scholarship for some reason: student loans, her “college fund”, and/or to pay for it herself. The judge indicated that a final decision on the issue of her parents’ college fund would come after the deadline to file the Free Application for Federal Student Aid (FAFSA). As most know, in order to qualify for federal and most private educational loans, both the parents and the child must submit their FAFSA to determine the extent, if any, of financial aid to which the child may be entitled.  The amount of financial aid offered to the unemancipated child is largely based on the income of his or her parents. If the parents refuse to submit a FAFSA, the child cannot secure any financial aid until they are legally emancipated. One “public service” website explains that teens who suspect their parents may have refused to submit a FAFSA because they have not filed income taxes returns should actually report their parents to the IRS and collect a reward. This stellar advice also instructs, “If your parents are sufficiently wealthy, the reward could pay for your education!”  As if Ms. Canning’s suit against her parents wasn’t already sufficiently harmful to the family dynamic…

If Ms. Canning does not qualify for federal or private student loans, she will almost certainly return to court over this issue, since her college dreams will depend on either her own payment of tuition (which she likely cannot make) or payment from the “college fund” that her parents’ established, to which  she believes she is entitled. Hopefully this case will not result in a new standard for parenting which would allow teenagers unbridled access to money their parents have saved over the years no matter what title they may give the account.

#emancipated minor   #parental rights  #college fund  #constitutional rights

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The choice of a lawyer is an important decision and should not be based solely upon advertisements

“We’re Sending You a Free Gift!”

More and more Americans use only their cell phones as their sole telephone number, both to avoid the expense of an unnecessary land line and to try to avoid the relentless robocalls and telemarketers who interrupt many an evening meal.   Since 2009 most robocalls have been prohibited by Federal law (15 U.S.C. 6101-6108We Are Going To Send You a Gift!), regardless of whether the phone number is listed on the ‘Do Not Call Registry’, unless the consumer has previously stated, in writing, that he or she wants to receive automated calls from the company in question. However, some robocalls remain legal, such as those from political organizations or charitable groups, which are considered “informational” and are not trying to sell you something (Federal law regulating telemarketing and robocalls also has a loop-hole for some prerecorded healthcare messages made by or on behalf of a covered entity, like the Social Security Administration, or their business associates).

Unfortunately, our cell phones are the next target of the telephone scammers, and at this point, the ‘Do Not Call Registry’ is not strong enough. Likewise, internet voice technology makes it easier for the crooks to beat the system to get around the ‘Do Not Call Registry’ and hide their identity. The harsh reality is that as technology advances, so do the scammers. 

For some consumers, the robocalls are more than a mere interruption or annoyance.  There has been a recent increase in robocalls specifically aimed at senior citizens.  Some calls even promise a free personal medical alert device that can be sent to them in the mail.  Typically, the robocall claims that the free device is gift from a loved one, physician, or provided under the Affordable Care Act. Once the consumer presses “1” to receive more information, they are connected to a sales representative to lure their personal information and sometimes con the senior into paying for the device and services.  Then the victim’s credit card is charged thousands for the service for the “free” medical alert device. Others have reported never receiving a phone call, but instead receive a “free” device in the mail.  Afterwards the victim receives threatening phone calls and invoices to pay for the device.

Both local and federal law enforcement agencies are scrambling to keep up with the technology and the scammers.  One by one, the illegal robocallers are shut down, but new ones pop up every day.  In 2012, the Federal Trade Commission held a summit to address the issue of rising illegal robocalls and to develop a solution to stop the rapid increase.  For now the best advice is to simply hang up.  No matter what the robocaller tells you, do not give your name, personal information, or press any buttons. Many robocalls purportedly offer a “opt out” feature, suggesting that calls will cease if you “press 2 to be removed from our list”, but the reality is that by doing so you simply confirm that the robocaller has reached a working number that will listen to messages.  Often consumers find that the number of robocalls actually increase after pressing a button to “opt out” of future calls.

Finally, if you do receive unordered merchandise or a “free gift” addressed to your home, you are under no legal obligation to return it or pay for it. If you are harassed for payment or return of the merchandise, call the police. 

To file a complaint, visit www.ftc.gov or call 1-877-FTC- HELP (1-877-382-4357).

Nothing posted on Evidentiary  Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

 

 

Supreme Court Rules that DOMA Does Not Actually Defend Marriage

http://www.dreamstime.com/royalty-free-stock-image-same-sex-marriage-image29055416

The United States Supreme Court’s decision this week in U.S. v. Windsor (related to the Defense of Marriage Act, referred to as “DOMA”) essentially prevents the Federal Government from treating same-sex married couples differently than “traditional” married couples, at least in states where same-sex marriages are recognized and protected by that State’s law. As such, the “benefits” applicable to married couples must be afforded to legally married same-sex couples in those states.

What this decision does not do is force States which do not recognize same-sex marriage to do so. The reason why the latter was not addressed by the Court is because that section of DOMA was not challenged in the underlying case by Edith Windsor, the widow of her same-sex deceased spouse, whose own claim related to the federal estate tax exemption for surviving spouses. Because the Court usually only addresses the narrow questions raised in a given case, it did not, in the Windsor case, address that section of DOMA that deals with State (as opposed to Federal) recognition of same-sex marriages. DOMA was not, therefore, completely invalidated, but it was substantially eviscerated.

What federal benefits are protected? According to the Supreme Court’s written opinion, there are more than 1,000 benefits that inure to married couples (in fact, according to the Government Accounting Office (“GAO”), there are specifically 1,138 federal rights associated with marriage), which now inure to all married couples regardless of whether they have a “traditional” marriage of two members of the opposite sex or a same-sex marriage. Prior to this ruling, DOMA effectively served to deny persons in same-sex marriages, even where recognized by their state’s own laws, these 1000+ benefits, while simultaneously making them available or applicable to opposite-sex married partners.

The impact of the ruling is that Mrs. Windsor, the Petitioner in the case itself, will be entitled to a refund of the $360,000 of estate taxes that she paid upon her spouse’s death, as she is now entitled to claim the “estate tax exemption” applicable to spouses under federal law.
Additionally, a list of the benefits now available to same-sex couples, in small part, includes:

• Social Security and Railroad Retirement benefits
• Veterans’ benefits
• Military service benefits
• Employment benefits
• Immigration benefits, including the right to have an alien spouse remain in the U.S. after marriage.
• Intellectual property benefits
• Medicare benefits
• A host of additional tax benefits.

The additional point to take away from this ruling by the Supreme Court, which is applicable to all Americans, regardless of their opinion on this issue, is that the Federal Government’s use of the state-defined class for the purpose of imposing restrictions and disabilities was inconsistent with Constitutional protections. In essence, the Court effectively said that the Federal government’s application of its law (DOMA) injured a class of persons which the State sought to protect.

We all have differing opinions on this, and many other issues. Regardless of one’s personal opinion, it is interesting to observe our judicial process balance the often competing interests of Federal government, State government, and individuals. In essence, the Supreme Court in Windsor effectively establishes only one type of marriage, at least with regard to applying Federal laws, by deciding that if a marriage is sanctioned by the sovereignty of the State that created it, the Federal Government must concede its validity.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Nigerian princes don’t care about internet “Terms of Use”

By now, who hasn’t received an e-mail from someone claiming to be a member of the Nigerian royal family, seeking help transferring millions of dollars to a safe facility in the United States, to keep it from falling into the wrong hands? While it seems improbable that anyone getting such a message would truly believe that out of the hundreds of millions of people in the world, this “prince” or other relative of a supposedly deceased world leader would be contacting average “Joe” in the Midwest for help, apparently some people do fall for it.http://www.dreamstime.com/stock-photography-young-african-american-man-sheikh-laptop-image16921012

 Identifying a scam may be hard. The rule of thumb should always be “if it’s too good to be true, then it probably is”.

 Besides scams, however, the average individual today with an e-mail account is bound to receive junk e-mails by the dozens. Needless to say, we recommend not only that they be ignored, but that they be deleted. It is not difficult for the unscrupulous to attach or imbed a virus or other hacking program in the types of attachments that come with junk e-mails. Likewise, when you receive an e-mail from a “friend” with a video of a cute little kitty or some purportedly exciting attachment, exercise extreme caution about opening the file. Unless you are absolutely certain the message is from someone you know, don’t open the message or any attachment. Look for clues in the message that it is really just spam:

  • Did your “friends” use the nickname for you that they usually use, or address you more formally?
  • Is there simply a hyperlink but no other message?
  • Does their actual listed e-mail address in the “from” line match the one you know to be accurate?
  • Are there misspellings or grammatical mistakes that you wouldn’t expect them to make?
  • Are there other recipients listed of whom you’ve never heard before?

If you open a spam or junk message by accident and unleash a virus, cleaning and fixing your computer can be an expensive proposition. It is highly unlikely that you can look to someone else for the injuries or damages you sustain. Your e-mail service provider or internet service provider will disclaim all liability for the damage and cost. Everyone who signs up for a new electronic service checks a box that says “I agree” before they ever receive the service. The agreement you just checked were to the “terms” of use, which nobody ever reads. The next time you sign up for any service, give those terms a look. You usually waive any liability for problems you encounter using the internet (which would include turning over your bank account information to the Nigerian prince so that he can transfer funds to your account), and often actually agree to monthly or annual fees you don’t realize you are paying until you see an odd vendor name on a credit card bill months in the future. However, it is no different than any other contract in that one should “read the fine print”. In the context of internet services, there is no high-pressure sales pitch, no time limit to join, and you have all the time in the world to read the terms of use before you click the “I agree” or “accept” box.

 In what may be the very first lawsuit filed over some internet-based entity’s “terms of service”, a class action case was recently filed against Instagram. You should keep in mind, however, that the claim is that they changed their terms of service unilaterally on people who had signed up under different terms. Many legal scholars think this case has very little chance for success, given that like a television, where if you don’t like what you’re watching you can turn it off, Instagram users could have simply deleted their accounts if unhappy with the new terms. Given the probable failure of a case related to altered terms of use, there is, at this point, little hope that you can collect monetary damages for injuries you may sustain as the result of internet scams and spam from a company whose terms you accept blindly and entirely. Therefore, as much as we would like the law to help us when we are victimized by a scam, there are substantial limits to what can be done. You’ll never really find the “prince” who robs you of your identity or funds, and the internet service provider you use doesn’t promise you protection from those scams.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

YOU’VE BEEN SERVED…

You answer the door and a man hands you an official document and says “you’ve been served”. In your quivering hands are a summons and lawsuit papers. What do you do? This is not the kind of question you want to consider for the first time after the faYOU'VE BEEN SERVEDct. It is important to know how to conduct yourself prospectively in this situation to prevent any missteps. Do not panic or argue with the process server. He can’t (and likely won’t) help you. Accept service of the summons, but only if you are the correct individual the process server is attempting to serve. Do not accept service on anyone else’s behalf.

Avoid the temptation to immediately call your spouse, your best friend, or your boss. More importantly, strongly resist the additional temptation to simply vent to the nearest random individual. And perhaps most importantly, do NOT post anything about the summons served upon you, or the suit being brought against you, on any social networking website. Many people, especially those being sued for the first time, read the allegations in a lawsuit petition and are so personally offended or surprised by the allegations that they want to call the attorney bringing the suit to say “this isn’t true” or “it didn’t happen like that”. Keep silent and keep your fingers away from all keyboards, including that tiny one on your phone.

When you can no longer feel your heart pounding in your chest, read the summons and suit papers carefully. Make some notes for your attorney of what you believe are the most important points, especially as they relate to the allegations against you. These notes should be prepared for your attorney so that they remain privileged from discovery, and to help you and your attorney prepare your defense. If you already have an attorney, contact him promptly, since suit papers are time-sensitive and a formal responsive pleading must usually be filed within 30 days (sooner in some jurisdictions).

The issue or event over which you are being sued may not be fully known to you. In fact, it may be something for which you have insurance coverage. Do not presume that is not the case. Pull out your auto, homeowners, professional liability (if applicable) or other policies and contact the claims departments immediately to report the suit, because if you do have coverage for the allegations in the suit, timely reporting that to your carrier is also critical. If your carrier acknowledges that they do cover you for the allegations, they will likely assign a defense attorney to you, but you can also work with your own personal counsel at the same time. To help either your assigned or retained counsel, try to promptly locate any documents or records that you believe may be associated with the claim asserted and place them in a secure location. You are building a file to take with you to your attorney’s office.

Do not discuss the details of the suit or any of the allegations raised in the case with anyone besides your attorney. Your discussions with your attorney are protected by attorney-client privilege, but statements you make to anyone else are not. No matter how irrelevant or innocuous you believe your conversation with someone else may be, you should understand that the contents of any such conversations are discoverable. That means that you may later have to sit through a painful deposition listening to your casual words – flippant, confessing, insulting or otherwise — repeated on the record by the person with whom you spoke.

Those are the basic “rules of conduct” when you are served. Don’t panic, maintain silence, collect relevant documents, contact your insurance carrier, and call your attorney. Once the suit papers are in your hands, the outcome of the suit may be out of your hands – but you still play a vital role in assisting in your own defense.

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

IS THAT REALLY A POLICE CAR?

No matter where you are, the sight of flashing red and blue lights in your rearview mirror will make your heart race a bit faster. But what if you see those lights and the car is not marked in any way, or does not look like a typical police car?

IS THAT REALLY A POLICE CAR?

Many people, especially women, are taught not to stop if an unmarked car is trying to pull them over – at least not until you can do so in a well-populated or busy area. This suggestion is further advanced by a “story” currently making the rounds on Facebook and other social media sites about a woman being flagged over by a purportedly “unmarked” police car with flashing lights, who smartly dials “112” on her cell phone, putting her in touch with a police dispatcher who tells her that they have no cars in her area. She keeps driving and is finally saved when the real police show up and surround a would-be assailant pretending to be a police officer. While that particular story, and its common variations, may be just urban legend (especially the suggestion that dialing “112” will actually put you in touch with a dispatcher, which is not accurate), there are certainly stories of individuals who have attempted to impersonate police vehicles with light bars or other devices, and attacking people (especially women) who dutifully and automatically pull over at the sight of those lights. So the question remains, what should you do if that situation should arise? And what are the implications if you do NOT pull over and the vehicle is an actual police officer with a legitimate reason to stop you?

One consideration is that “failure to yield” to a police officer, or failure to obey the lawful direction of a police officer is generally a crime (or at the very least, a traffic offense) in most states, and can lead to fines and points or other impact upon one’s driver’s license. Would an actual police officer be understanding of an explanation about your fear of his unmarked vehicle? Will he give you a ticket even though you explain that you were taught by your parents not to pull over for an unmarked “police car”? When personal safety is at issue, and you can’t be completely sure of the motives or legitimacy of a car flashing what appear to be emergency vehicle lights at you, start by turning on your own emergency flashers, so that the “officer” knows you are aware of his presence and aren’t avoiding him. Try to pull over in a well-populated area if possible, or at least in a well-lighted area or a business parking lot. If you aren’t near a well-populated and well-lit spot, or otherwise still question the legitimacy of the vehicle, dial 911 on your cell phone and advise the dispatcher of your location, and that you are being pulled over by a car you cannot identify as an actual police car. At the very least, if it turns out to be an actual police officer decides to give you a ticket for “failure to yield” to him, you will have a timed and documented (911 recording) explanation of your rationale for not immediately doing so, which you or your attorney will likely be able to use to get such a charge thrown out.

Remember, while the odds are that those flashing lights in your rearview mirror is an actual police officer, if the vehicle does not look like a police car, don’t hesitate to think about your safety first.

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.  

The choice of a lawyer is an important decision and should not be based solely upon advertisements.