Articles for March 2014

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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Is There Really a Loophole in Missouri’s DWI Law?

A recent front-page article in the Post-Dispatch reported on a potential loophole in Missouri’s DWI law.  By way of background, a driver who is ticketed for suspicion of DWI and has a Blood Alcohol Content (“BAC”) of at least 0.08% (more precisely stated as 0.80 grams of alcohol per 210 liters of breath) faces two independent proceedings.  One is the standard DWI criminal prosecution by the prosecuting attorney of the jurisdiction issuing the ticket.  The other falls to the Missouri Department of Revenue (“DOR”) and is a civil administrative proceeding under which one’s driver’s license may be suspended for up to ninety (90) days for driving with an excessive BAC.  [Not addressed in this blog is the outright refusal of a driver to submit to a BAC test which might result in the loss of one’s driving privileges for an entire year.]

http://www.dreamstime.com/royalty-free-stock-images-keys-cuffs-alcohol-image28780349How do you prove that a driver was actually under the influence of alcohol?  There are several ways available to the standard prosecution – erratic driving, field sobriety tests (reciting the alphabet backwards, slurred speech, smell of alcohol, bloodshot eyes, etc.), admissions or statements of the driver or witnesses, and the BAC test.  But the DOR administrative procedure relies exclusively on the BAC test.

 In order to use the BAC test result in either a criminal or administrative hearing, , the prosecutor and the DOR must prove that the test result was “reliable”, and make that showing by proof that it was administered in strict compliance with the standards adopted by the Missouri Division of Health and Senior Services (“DHSS”).  The DHSS has promulgated a 141 page BAC operator manual.  One of those standards is that the BAC machine must be calibrated at least every 35 days.  In the past, the State only had to show that the machine had been calibrated to either 0.10%, 0.08% or 0.04%.  But on November 30, 2012 the DHSS published a new rule (apparently by mistake or simply not having thought through the consequences discussed here) that provided the machine should be calibrated to the 0.10%, 0.08% and 0.04% levels.

 Now DWI defense attorneys are having a field day challenging the admissibility of BAC test results unless the machine was tested at all three levels.  Consequently, most judges across the state are throwing out the BAC tests.  The result of this is that the DOR is losing most of its administrative revocation cases. 

 The ultimate impact, if any, on criminal prosecutions is yet to unfold.  As noted, in a criminal prosecution the State will elicit testimony from the arresting officer who can be relied upon to testify that the driver drove carelessly, smelled of alcohol, stumbled, mumbled and could not recite the alphabet.  This testimony is usually supplemented with videos from the patrol car’s dash camera showing the field sobriety testing and from the booking process at the police station.  The defendant’s actions and conduct are often enough to show a jury that he should not have been behind the wheel.  So, even without the BAC results a jury can usually find that there is sufficient other evidence to convince them that the defendant was guilty of DWI.  But some jurors may wonder why the State has not introduced the BAC results and conclude that, perhaps, the test results were not above the legal limit and acquit the defendant.

 The DHSS purports to have corrected this rule on January 29, 2014, so now the rule clearly requires that the BAC machine only be tested at one of the three levels – just like the former rule was written.  See 19 CSR 25-30.051.  However, the new (old) rule may also be subject to challenge because the DHSS adopted the change as an emergency rule, and that process may not have been appropriate.  [That is well beyond the topic of this blog.]

A large number of questions still exist.  For instance, is the BAC test thrown out if the arrest occurred during the “and” period but the trial is held when the “or” rule is in effect?  What if the arrest occurred during the former “or” period, e.g. October 30, 2012, and the trial was held during the “and” period, e.g. October 30, 2013?  Maybe these questions will never be answered by the courts, but they underscore the importance of attention to detail when a state agency is drafting rules that control the admissibility of important evidence.

 We will continue to monitor this development and update our blog when we have more information.

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#DWI  #missourilaw   #DWIlaw   #BAC