Parenting Time Evaluations - What Are They and Do You Need One?

Parenting Time Evaluations - What Are They and Do You Need One?

Mediation

High conflict divorces often translate into high conflict custody cases.  What can you do to help resolve the conflict?  In a divorce where custody cannot be agreed upon by the parties, the courts will almost always appoint a mediator.  In Idaho, you are ordered to attend three mediation sessions.  Some folks can work out the custody in those sessions, others cannot.  So what happens when mediation fails?

Parenting Time Evaluations

If mediation fails, upon the court's motion, upon the motion of one party or the other or by stipulation, the court can order a parenting time evaluation.  The court appoints a parenting time evaluator.  This is an independent party who interviews the parties and observes their interactions with their children.  The evaluator puts together and extensive report for the court making determinations and suggestions on how custody should be structured.

Are There Risks to Seeking a Parenting Time Evaluation?

Parenting Time Evaluations can be extremely helpful in resolving parenting and custody issues.  From a client's perspective, the risk of the evaluation is it will find against you.  Some issues that come up in these evaluations are controlling behavior, overly authoritarian behavior, too little parental involvement or supervision or lack of interest in the welfare of the child.  If you have a health relationship with your children, and your parenting style and behavior falls within the normal and acceptable range of parenting, the risk of getting a "bad" parenting time evaluation is generally fairly low.  Other times clients are unhappy with parenting time evaluations because they think that the other party should have limited visitation or custody of the children and the parenting time evaluator thinks differently.  Something to keep in mind is that the evaluator is seeking to find the custody arrangement that is in the best interest of the children.

If you are seeking a divorce or a modification and need to speak with one of our Boise Divorce Attorneys, give us a call at (208) 472-2383.  You will be glad you did.

Divorce and Custody in Times of Covid-19

Do I have to do a custody transfer during times of lock down or community spread?  This is a question I have been getting very frequently.  Many people are concerned and so for them it is a valid question.  There are some, who having been scarred by the divorce itself, will try to use community spread as a weapon against the other parent.

Child's Best Interest

The main focus of a custody order is the best interest of the child.  Maintaining regular and frequent contact are extremely important to a child's well being.  Keeping this in mind, it is imperative that in a situation where a child is going back and forth between homes, that both parents, as well as the child, are exercising precautions to prevent contraction of Covid-19.  By doing this, the parties can continue the child's routine which is so critical to their well being. If a child or a parent does contract Covid-19 the appropriate measures should be taken including notifying the other parent and apprising them of the situation.

Invalid Use of Claim

For those who seek to use Covid-19 as a tool to spite the other parent, judges are very good at reading through the lines.  Undoubtedly, they have heard testimony and if one parent or the other, or both, comes across as incredible, then when the issue of coronavirus is brought up, the judge may questions the veracity of the claim.

If you have questions about divorce, custody or covid-19 in relation to divorce or custody, give us a call at (208) 473-2383 or visit us at www.lawboiseid.com

Criminal Law in the Divorce Law Context

Criminal Law in the Divorce Context

I have blogged before about the overlap of criminal and family law.  But summertime is a prime time for the two to overlap. So today I will spend a few moments discussing what not to do to prevent your Boise Divorce Attorney from having to become your Boise Criminal Lawyer.

Custodial Interference

Summertime, like Christmas and Spring Break are a time when vacations and holidays change up your visitation schedule.  Conflicts arise due to flight changes, activities and the general busyness of summer.  A court ordered visitation schedule or a court ordered temporary order schedule is undoubtedly in place if you are in the process of divorce or have gone through a divorce.  It should be well outlined in your schedule who has visitation, times for return and what happens if a change needs to be made.  Some people flow with this very easily.  For others, there is great strife.

So, how does criminal law come into changing a visitation schedule?  If your order says that you get your kids for two weeks during the summer and outlines when they are to be returned and you fail to return them and you fail to get the appropriate written consent for change or out-of-state visitation, the other party can seek the help of the authorities and have you charged in a criminal context.  Custodial interference is something that judges do not like.  Your divorce decree or your temporary orders should be very specific about return times and changes and out-of-state visitation.  Don't get caught up in the criminal law system. Make sure your read your order and get back on time or have a written agreement to the contrary signed by the other party.

DUI, Domestic Battery and Sumer-time Fun Gone Bad

Summertime, like the holidays, is another time when criminal lawyers and divorce attorneys, alike, see an uptick in drinking related offenses.  This can appear in things like DUI, because people tend to drink alcohol more heavily in the beautiful days of summer or during the winter holidays when people are gathering to celebrate.  While a DUI does not technically fit into the divorce law context, the drinking involved, which ultimately may lead to driving under the influence of alcohol, can spill over into the family law context.

Often, though not always, domestic battery is precipitated by drinking.  When you drink you lose your inhibitions.  Built up frustration can lead to anger and anger can get out-of-hand.  Don't let that happen.  If you drink, first and foremost, don't drink too much.  Avoid getting into discussions when you are angry.  You get relaxed when you drink and often people bring up difficult topics when they are drinking because they are relaxed and more comfortable about addressing issues which they may be unable to talk about without drinking.  If you find yourself in this situation, and you notice that either you or your partner get agitated, angry or violent, seeking counseling.  It can be a very helpful way to get issues on the table to discuss.  Much more helpful than alcohol.

If you need a Boise Divorce Attorney or Idaho Criminal Lawyer, give us a call, 208-472-2383, and see what we can do for you.

Boise Criminal Attorney - Idaho Criminal Defense Lawyers - Medical Marijuana

If you have been arrested for possession of marijuana or any other crime in Idaho and need to speak to a Boise Criminal Attorney or an Idaho Criminal Defense Lawyer, please call (208) 472-2383.

Recently in the news, in news magazines and blogs all over the web there have been articles, essays and reports about various states enacting medical marijuana legislation.  There have been pleas to stop the insanity, demands to "just legalize it already" and the rare non-biased news report simply illuminating the facts about medical marijuana.

Over the weekend I had the opportunity to meet a gentleman from Colorado and to see first hand the much talked about medical marijuana card.  The gentleman posed an interesting question to me regarding medical marijuana.  His question was, if he has a valid medical marijuana prescription from Colorado and he brings his "medicine" into Idaho can he be charged with possession here?  Sounds like an easy question right?  Wrong.

Article VI, Section 1 of the United States Constitution states that "Full Faith and Credit shall be given in each State to the public acts, records, and judicial proceedings of every other State".  This is supposed to mean that each state in the United States will recognize the validity of the laws of a sister state even if their laws are different or contradictory to their own.  Think, for example, if the laws of one state were not recognized by another.  If I was married by common law in Idaho before 1996 and I move to a state that does not recognize common law marriage, would I suddenly be a single person?  No, of course not.  My marriage would be honored and recognized because of Full Faith and Credit.  Likewise, if I get a divorce in Idaho and my property is split according to community property laws and I move to another state that does not recognize community property law, that state will still acknowledge my ownership as determined by community property pursuant to my Idaho divorce decree.

Some people argue that because it is a criminal law issue, Full Faith and Credit does not apply to medical marijuana.  This is simply absurd.  A state court in one jurisdiction can enforce an order of a court from another jurisdiction even if it is a criminal matter.  Domestic Violence orders across state lines are not ignored simply because they are of a criminal nature.

So what about medical marijuana? Is it a crime to possess marijuana in Idaho that was prescribed pursuant to law by a Colorado doctor, after the State of Colorado passed the law allowing possession of marijuana for medical use?  The Supreme Court  of the United States has clearly held that every state must give judgments from other states “the same credit, validity, and effect” that would be given to the judgment in the state that rendered it. (Williams v. North Carolina, 317 U.S. 287, 293-94 (1942) (Williams I)).  So it shouldn't be a crime right? Well,  even though the Supreme Court has said in so many words that it shouldn't be, like a lot of issues in the law, it is as clear as mud.

Even though the Constitution of the United States says Full Faith and Credit must be given, it is routinely denied.  Think of gay marriage.  Just because Massachusetts allows a gay couple to get married does not mean Idaho will recognize that marriage, and in fact, Idaho does not recognize gay marriages from other states.  Where is the Full Faith and Credit there?  Oh, yeah, its called the ever-present "public policy" exception.  The irony of that?  If that same Massachusetts couple adopts a child within their marriage in Massachusetts, even though their marriage won't be recognized in Idaho, the adoption and the status of the gay couple as parents is recognized.  Can you see now how a proclamation from the Supreme Court, such as the validity of Full Faith and Credit, gets murky depending upon the issues involved?

As far as medical marijuana is concerned, it is a terribly unclear area because the Idaho Supreme Court has yet to take up the issue.  In March of this year, however, a woman from Humbolt County, California who had a medical marijuana license was arrested in Freemont County, Idaho for possession of marijuana and possession of paraphernalia. She was charged, because according to the Freemont County prosecuting attorney, "Idaho does not honor marijuana certificates from California and other states".  This, presumably, is based upon that old Public Policy exception. This case, however, won't be taken up to the Supreme Court because the woman plead guilty, but it is likely that eventually someone will be up for the challenge.

So the long and short answer to the gentlemen from Colorado - there is no final answer - yet.  All states are wrestling with the issue of medicinal marijuana because it is a new law, and one that does not yet have all the bugs worked out.  My advice to the man from Colorado?  Don't get caught, but if you do, make certain you have a darn good Boise Criminal Lawyer to either get you a good plea or to help you set the precedent in Idaho.

If you have been charged with possession of marijuana or any other crime in Idaho, including DUI, and you need to speak to a Boise Criminal Attorney, please call (208) 472-2383.

Boise Divorce Attorney - Idaho Attorneys and Lawyers - Common Law Marriage

Boise Divorce Attorney and Custody Lawyers in Boise, Idaho call (208) 472-2383.
As a Boise Divorce Attorney I work frequently within the world of the Idaho Family Law Statute.  Idaho Code Chapter 32 deals with Domestic Relations.  It covers everything from marriage, illegal marriage, divorce and the grounds for divorce to the parent child relationship in terms of custody and visitation as well as community property.

The Family Law Statute has changed over time.  One specific example of this change has to do with common law marriage. At one point in Idaho history, the state recognized common law marriage.  Common Law marriage put simply was two people decided to get married and they acted as though they were married.  In the eyes of the law, for all intents and purposes, they were married.  As of January 1, 1996, however, Idaho no longer recognizes any common law marriage begun after that date.  If you were common law married before that date, meaning you put yourself out as a married couple a court would still consider you married and you could file for divorce and custody in Idaho.

What does it mean to put yourself out there as being married?  A Boise Divorce Lawyer would present evidence to the court that showed you treated your relationship as one of a marriage, not just co-habitation.  Examples of evidence an attorney might use to prove this might be filing joint tax returns, being claimed as a spouse on health insurance, purchasing a home together or telling people that you were married.  However, having children together and co-habitating do not necessarily reach the level of evidence needed to prove marriage.

Why would your divorce lawyer want to prove that you were married?  That family law statute that I mentioned above provides  protection for married couples called community property.  If you were living together, but were not married and one party worked and the other stayed home and the one that worked used their money to pay for the house and to pay for the car and all the other goodies, if they ever split up the person who paid for everything would get it all.  Now that may be fine for the person who worked but the person who stayed home and took care of the house and the kids would get nothing.

Community property recognizes that it is a community effort to build the community and therefore it rewards each individual equally in terms of value.

If there were children to the common law marriage how custody and visitation would be determined for those children would be the same whether it was ultimately decided that a common law marriage did or did not exist.  The parties would be ordered to mediation and if they could not agree on a custody arrangement both divorce lawyers would present evidence to show why their client is the party best suited to be the custodial parent or why it would be in the best interest of the child to have primary physical custody with one parent or the other.  Ultimately, using requirements outlined in that family law statutes I spoke about above, an Idaho judge would determine what is in the best interest of the child.

Ultimately, if you are married and are going through divorce in Idaho or you are going through divorce in Idaho and have children or simply have children together in Idaho and are splitting up, you too will enter the world of the family law statute.

If you  need to speak to a Boise Divorce Attorney, please call (208)472-2383

Boise DUI Attorneys - Idaho Criminal Lawyer - Accuracy of Field Sobriety Tests

Boise DUI Attorneys - Criminal Lawyer in Idaho - DUI, DWP, Criminal Defense, call (208) 472-2383 free consultation.

Boise DUI Attorneys are always asked what the standard field sobriety tests are and if they are valid.  The National Highway Traffic Safety Administration (NHTSA) developed three standardized tests to determine if there is probable cause to arrest an individual suspected of DUI.  Standardizing the tests ensures consistency.

The three standardized tests are the Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT) and the One Leg Stand (OLS).  These tests are used once an officer has probable cause to pull an individual over on suspicion of DUI.  Once pulled over the officer administers the three standardized tests which provide the evidence for probable cause to make a DUI arrest and administer a breathalyzer test.

Boise Criminal Lawyers may challenge probable cause for the initial pulling over as well as the probable cause based on the results of the field sobriety tests.  Attorneys use challenges to probable cause to exclude evidence.  Once the evidence is excluded the prosecuting attorney, the state's lawyer, may or may not have enough evidence to go forward to charge an individual with DUI.

The Horizontal Gaze Nystagmus works on the principle of eye muscle control.  An individual who has not been drinking will show rapid eye jerking when the eyes are elevated to the maximum level. An individual who is intoxicated will show these jerking movements at less elevated levels as well as will have difficulty tracking with their eyes.

The Walk and Turn test requires an individual who is suspected of drinking and driving to walk nine steps from heel to toe and turn on one foot.  The officer looks for clues as the suspect performs the tests.  Such clues are inability to balance while listening to the directions, inability to walk heel to toe, inability to maintain walking in a straight line and failure to turn on one foot on the ninth step.  As a Boise DUI attorney I see people fail this test all the time, but I might suggest that even a non intoxicated individual may have difficulty performing this one.

The One Leg Stand test requires an individual who is suspected of drinking and driving to stand with one foot elevated about 6 inches above the ground and count by thousands for thirty seconds.  As the suspect counts, one-thousand one, one-thousand two etc, the officer looks for wobbling, swaying, hopping or putting your foot down.  Two or more of these indicators, according to the NHTSA, suggests the individual has an 83% chance of having over a .08 BAC.  Again, as a Boise Criminal Lawyer I see individuals charged with DUI failing this test regularly.  And, again, I would suggest that most people, especially the older you get, will fail this test.

DUI officers are trained to look at the three tests individually and as a whole.  When looking at the results of all three tests they get what is known as a Combined Measures.  With this they look at all three tests and evaluate the likelihood that the failures of the individual tests equal a DUI.

So, these are the standardized tests to establish probable cause for arrest on DUI.  The two most frequent questions Boise Criminal Lawyers get are, "Are they effective  and Can they be challenged?".

According to the NHTSA, when comparing percentage of those actually found to have a BAC of greater than the legal limit from 1981 v. 1998, the accuracy of the tests due to training increased substantially.  In 1981, when the legal limit for driving under the influence was .1, the accuracy for field sobriety tests were:  HGN - 77%, WAT - 8% and the OLS - 65%.  The Combined Measures resulted in an 81% accuracy arrest for DUI.  In 1998, when the legal limit had been reduced to .08, the results were:  HGN - 88%, WAT - 79%, and OLS - 83%.  This translates into a Combined Measure accuracy of 91%.

In light of the NHTSA accuracy statistics can a DUI Attorney still challenge the results.  Absolutely.  There are many factors which can go into failing a field sobriety test.  Some examples of this are medical conditions such as vertigo or eye disease.  Medications which have not legally impaired your ability to drive may make your balance on one leg questionable or cause you to have light sensitivity which could effect the HGN.  Criminal Lawyers will ask an individual charged with driving under the influence if they have any conditions which might impair their ability to take a standardized field sobriety test, but if you are pulled over on the suspicion of DUI and have a condition which might effect you performance, you should always let the officer know.

If you have been charged with DUI in Idaho and need to speak to a Boise DUI Attorney or an Idaho Criminal Lawyer, please call (208) 472-2383.

In addition to DUI and Criminal Law, Kershisnik Law offers representation in a variety of areas including divorce, custody, family law, probate, wills, estate planning, small business law, personal injury and employment law.  If you need to speak to a Boise Divorce Attorney, a Boise Probate Attorney, or an Idaho Personal Injury Lawyer, Employment Lawyer or Small Business Attorney, give us a call and see what we can do for you.

Boise Divorce Attorney -Idaho Family Law Lawyers - Boise Custody Attorneys

Kershisnik Law, (208) 472-2383, Boise Divorce Attorney, Idaho Family Law Lawyers, divorce, custody, modification, child support, family law.

As a Boise Divorce Attorney I often get calls concerning child support. There are many issues surrounding child support. They can be pursuant to a divorce or a custody proceeding or any other variety of scenarios. A frequent situation that I am involved in regard to Medicaid or other state assistance.

When a parent is receiving state funds or insurance through TAFI, or aid to needy families, there are certain rules that apply to child support. If you are receiving aid you are required to assign your right to child support payments to the state. Any monies you are owed pursuant to a divorce, custody or paternity order must be paid to the state in exchange for the support they are providing you in relation to TAFI.

This is an important point because as a Boise Divorce Attorney I often hear disparaging comments from people insinuating that a party is receiving child support from them and Medicaid or food stamps or the like. This simply is not the case.

If you need to speak to a Boise Divorce Attorney or an Idaho Family Law Lawyer, please call (208) 472-2383. You can also visit our website and fill out the quick contact form and one of our attorneys will get right back to you. There you can tell our lawyers how you would like them to contact you.