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Archive for October, 2011

Your criminal defense attorney can guide you through the entire legal process, from arrest to court appearance. Throughout this process, you may hear some legal jargon that’s unfamiliar to you. In order to avoid confusion and embarrassment throughout the process of arrest, litigation, and sentencing, it may help you to review the meanings of some key legal terms for aspects of the process.

Arrest

While this term is probably familiar to you, you may not be aware that your being arrested does not mean that you will be presumed to be guilty; it simply means that you have been accused of a crime and are being taken into custody. If you suspect an impending arrest, it’s best to seek out a criminal defense attorney before that arrest takes place so that you can be advised about how to handle the situation, as well as to possibly negotiate on your behalf, in order to avoid the arrest.

Booking

This is the event following an arrest, in which the police take you to the station, separate you from your personal belongings, take your photograph (or mug shot), and get your fingerprints. If the crime of which you’ve been accused is a misdemeanor, you may actually be released after the booking. In some cases, you will be held in jail until a court date, or until bail is posted. In some circumstances, it’s possible that a criminal defense attorney could arrange for you to be released until that date on your “own recognizance.”

Arraignment

After a waiting period, you’ll be asked to come to court for an arraignment. This initial appearance in court will serve to inform you of the details surrounding the charges brought against you. At this time, your criminal defense attorney will be provided with a copy of the complaints, as well as any other documents relating to the crime with which you’re being charged.

Plea

It’s important to note that your lawyer may advise you to “plea” differently than you would think. For instance, even if you are admittedly guilty of the crime, a lawyer might recommend a “not guilty” plea in order to lay the burden of proof on the prosecution. Basically, if your defender thinks that the prosecutor would have a hard time proving your guilt, a “not guilty” plea may well be in your best interest. If your case does end up in court, any doubt of your guilt in the minds of jurors should prompt your release.

Inadmissible

Any information or evidence that’s been obtained in an illegal manner is disallowed from being used to prosecute or defend you. Part of a lawyer’s job is to determine whether any such details are being used by the prosecution as well as to make sure not to attempt to use such information to defend you.

As your criminal defense attorney guides you through this sometimes confusing process, you can at least feel a bit less frustrated when you understand the basic steps involved.

When a family goes through divorce or separation, children often pay the biggest price. In nearly all cases they will continue to live with one parent or the other, but their sense of family and continuity disappears. School-aged children can have their routines disrupted even further if the eventual custody agreement mandates that the child live with a parent who is in a different school district, even a different state. It’s important for both parents to focus primarily on the welfare of their child, causing the least disruption and ensuring the greatest stability and continuity.

In most custody cases, two kinds of custody are awarded: legal custody and physical custody. Legal custody determines who will have decisionmaking power over the child’s welfare, including issues about the child’s education; these days, legal custody is usually awarded jointly to both parents. Physical custody, on the other hand, determines where the child will live. Physical custody, too, is often awarded jointly, such that the child will continue to spend substantial time with both parents; in some cases, the child swaps houses on a weekly basis. However, most custody decisions continue to award physical custody to one parent or the other, awarding visitation rights to the noncustodial parent.

Regrettably, parents involved in a contentious divorce and custody procedure often lose sight of the fact that their child’s welfare should come first. In the midst of a custody battle, it sometimes happens that each parent will enroll their child in a different school district; at other times, parents will obtain conflicting court orders from different jurisdictions. Children have been pulled out of expensive private schools in the middle of the school year because one parent or the other has stopped making tuition payments. Such scenarios suggest that it’s the parents more than the children who need further schooling.

There are some basic principles to stick to. First, children should continue to attend whatever school they happen to be attending until the parents come to full agreement on custody, or until the court issues directions. If the school requires tuition payments, both parents should ensure that these continue to be paid as necessary during the entire legal process; putting sufficient funds in escrow and having a trusted third party make payments is not a bad idea. Children require consistency; they are upset by family problems such as separation and divorce, and will need the continuing support of their best friends in school — their peers — as well as teachers and school counselors who are aware of the situation. Unilaterally uprooting a child from such a support network in the midst of a family crisis is the worst thing a parent can do.

If a child is not yet enrolled in a school while a custody case is ongoing, both parents need to agree, somehow, on where the child will attend school until the case has been completed. Generally, the child should be enrolled in the school district where he or she is currently living. If some form of joint physical custody is anticipated, the child should be enrolled in the school district where he or she will be living the majority of the time.

If one parent has already moved to another jurisdiction — in the United States, to a different state — then it is not at all helpful for that parent to muddy the waters by obtaining a court order from his or her new state. Custody laws and procedures differ from state to state, and court orders issued by one state are often not recognized in another state. This kind of renegade behavior on the part of parents is rarely in a child’s best interest. Likewise, the failure on the part of one parent to adhere to a visitation schedule (and thus cause a child to miss school), or to make an obligatory tuition payment, can be interpreted as contempt of court or even as a violation of a custodial interference law — a felony in some jurisdictions.

Once custody has been settled and a child is enrolled in a school, both parents will routinely continue to have access to the child’s school records — regardless of whether the parents have joint legal custody or whether one parent has sole legal custody. The school will release the records to either parent regardless, and both parents have the right to sit in on meetings with counselors or teachers regarding special education or other issues that might arise. In some cases, joint legal custody might not be awarded by the court because the noncustodial parent is shown to be a substance abuser, prone to erratic or violent behavior, or in some other way unfit to participate in decisionmaking about the child’s welfare. The custody agreement can specifically state that the noncustodial parent not be allowed access to school records. The school must be provided with a copy of the agreement, and it will then bar the noncustodial parent from obtaining records or otherwise participating in the child’s school activities.

Mostly, managing a child’s routine education during the course of a custody case is a matter of common sense. Regardless of how much — or how little — you are able to communicate with your ex-spouse or ex-partner, try to communicate at least about your child’s best interest with respect to education, and come to the most practical solution.