Category Archives:Family Law

Dying with Dignity

thColorado recently rejected a proposal to let terminally ill patients choose to end their lives. Dying patients would have been required to have two physicians sign off on written and verbal requests to end their lives. The patients would need to be able to administer the medication themselves and be found mentally competent.

Only five states have passed a similar legislation- Washington, Montana, Vermont, New Mexico and Oregon. Colorado’s bill would have been based on Oregon’s right-to-die law where 29 year old Brittany Maynard chose that option. More states have started to consider a death with dignity law after hearing Maynard’s story. Maynard was diagnosed with brain cancer in January 2014. In April, 2014 her diagnosis elevated to glioblastoma with six months to live. After months of research, Maynard came to conclusion she would end her life in Oregon with the help of the death with dignity law. Maynard and her family uprooted from California to Oregon where Maynard passed away November 1, 2014. Since Maynard’s death four other states have had pending proposals for the right-to-die law; Colorado (which was recently rejected), Pennsylvania, Wyoming, and California (where Maynard is originally from).

There were mixed feelings about the bill as some people thought the bill would facilitate suicide and take away the patient’s hope for a possible recovery. Others were supporters of the bill saying it is a very personal choice for the patients and terminally patients should be able to choose when and how they die.

Lawmakers had concerns about whether abuse can be prevented by approving a right-to-die law. Family members of the terminally ill patient may try to speak with physicians on behalf of the dying relative even if it’s not what the terminally ill patient wants. If a terminally ill person acquires the medications through proper channels but decided not to take the medication, are there ways to discard the medication so another family member can’t take the prescribed medication?

by Brittney Jones, Paralegal

6 Reasons Why You Should NOT Go to Court Alone

judge cartoon There are hundreds of websites written for people who want to represent themselves. Everyone in the United States has access to Google and Bing. Most people with at least some computer savvy can locate major case decisions for DUIs, divorce and criminal offenses with a few swipes on their smartphones. Here’s the cold fact: while you may effectively represent yourself in some limited cases, if you have been charged with anything other than a petty offense or traffic ticket, or if you’re embarking on a divorce or family law case and don’t want to give everything away to the opposing side, you should strongly consider speaking to an attorney first. And after speaking to that attorney (and maybe a few others), you should probably hire one of them. Here are 6 reasons why you should not (I repeat: NO NO NO) represent yourself in court, regardless of everything else you may have read online.

1. So you want to go pro se, but you don’t know what the words “pro se” mean?

I can’t count how many times I’ve heard lousy attorneys or unrepresented defendants tell the court they’d like to “squash” a warrant. Do you know the right word to use in that last sentence? It’s “quash” and if you didn’t know this, you probably should not be representing yourself in court. Courtrooms have a certain vocab, a Latin-heavy lingo, that you may not be used to hearing in everyday life. Every document served in court has its own legal title: petition, citation, motion, answer, response. Every hearing has a different name: first appearance, arraignment, setting, pretrial conference, disposition etc. Stop your head from spinning on all of the legal jargon and hire an attorney so you don’t have to think so hard. P.S. Pro se translates to “for oneself,” as in going to court for yourself. Remember this.

2. The judge will not like you if you represent yourself.

Yes, you have the right to represent yourself in court. However, nobody likes it. Should you decide to represent yourself, it’s likely you’ll hear the judge advise you once or more about that decision. Sometimes judges will even slickly try to talk you out of going pro se (I know you now know what pro se means). Representing yourself means the clerks and judges will have to take more time to explain things to you. This will effect court efficiency and most judges love efficiency. Also, some defendants/respondents/petitioners come as cocky or arrogant as they huff and puff and address the Court. Have you heard Judge Judy react to arrogant people on her show? I’ve seen judges come down similarly on parties. I’ve heard a judge actually tell the parties, “This is not Judge Judy!” when courtroom decorum wasn’t followed.

3. You’ll get out of court faster.

In most jurisdictions, attorneys are heard before everyone else. That means if you have an attorney, he or she can jump up and have your case called toward the beginning of the docket. That means you get to skip being bored and restless listening to all of the other cases drone on before the judge gets to your name, Zachary Zagat, printed last on her alphabetically listed docket. 4. Every courthouse and courtroom is different. You can’t research that online. I’ve practiced in Colorado for almost a decade now and I’ve appeared in eight different counties/jurisdictions so far. Every jurisdiction runs a little differently from the next. While a pro se or sovereign focused website will give you a general overview of what you might expect of the court process, that website might not be specific to your jurisdiction and I’m certain there will be no details about how the courtroom operates in your assigned division in your particular jurisdiction. I suppose you could sit in on dockets for hours beforehand and get a feel for your judge–and I’ve seen pro se defendants do that sort of thing–but who has that kind of time? You’re better off spending that time shopping around for an attorney who you feel is on your side and competent to take your case. And speaking of online research, printing out Wikipedia pages and webmd.com articles to present to the Court at a hearing will have little to no impact on the outcome of your case. There’s this big book of things called The Rules of Evidence, which dictates what kind of evidence gets action in a case. You’ll be held to a standard pretty close to a regular attorney and that means you’ll have to play by the same Rules.

5. An experienced attorney knows the court’s quirks and preferences.

Remember the classic comedy, My Cousin Vinny? Vinny may have (spoiler alert) won the trial, but he sure looked ridiculous along the way. And he was an actual law school graduate. I suggest you find an attorney who has experience practicing in the courthouse where your case is scheduled. When I say “practicing,” I mean standing in front of the bar in the courtroom on a regular basis, reciting his bar registration number from memory for the record without hesitation, and addressing the judge from the lectern. A cousin of a friend of a friend who does real estate law probably won’t be of help to you on your felony burglary case that’s postured for a jury trial, even if his retainer is bargain basement. Why not choose the attorney who can name a couple of the judges in the courthouse and knows that, for instance, Judge Matthews is a woman?

6. Have you met Miranda?

Don’t trust what you see on TV. I’ve had dozens of potential clients tell me that their cases should be thrown out since the police officer never read them their rights. Because, they say, on Law & Order, or CSI or Brooklyn 99, the cops always read the Miranda rights, right? Not so fast; there is no automatic rule saying a cop has to read you anything upon first contact. You’re really only supposed to get those famous Miranda advisements read to you if you’re facing custodial interrogation, a term which can be complicated and is outside the scope of this blog post. And even if you happen to be in a situation of custodial interrogation and you weren’t read your Miranda rights, it doesn’t necessarily mean that the entire case gets tossed. There are nuances that need to be considered. If you’re going to remember anything about Miranda upon reading this post, remember the second of the rights: You have the right to an attorney. If you can’t afford an attorney, one may be appointed for you. Take advantage of this right and don’t go it alone on your legal matter.

I'm the Grandparent -- Don't I have Rights to my Grandchild?

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Fact:  In the United States, grandparents do not automatically enjoy legal rights to visit their grandchildren or gain custody of their grandchildren.

This is an interesting fact given that a 2011 study found that grandparents were the primary caregivers for 3 million of the children in the county and a second study determined that 1 out of every 10 U.S. children lives in an extended household that included one or more grandparents.  Certainly grandparents play an important role in a child’s upbringing, but what if a parent just does not want grandparent input or does not want the child to have a relationship with his/her grandparent at all?

Each state has its own laws in place regarding the extent to which a grandparent may petition a court for visitation with a grandchild.  Some states are very lenient while others barely allow grandparent any standing to bring the issue before a court of law.  Colorado is middle-of-the-road on the issue of grandparent rights to visitation and child custody.  In Colorado, section 19-1-117 of the Children’s Code in Colorado Revised Statutes covers grandparent visitation and it does not provide a particularly broad remedy to grandparents.  The crux of the Colorado Children’s Code is that a court shall determine whether its ruling or decision would be in the “best interest” of the child.  This is the standard by which most courts across the country decide. In deciding the “best interest” of a child, a court will consider the totality of the evidence and circumstances surrounding the grandparents’ request.

Prior to a grandparent even considering a motion to the court for visitation in Colorado, there must be an already existing or open legal action in process.  From there, there are legally three situations in which a grandparent may raise the issue of visitation of a grandchild with a court:

  1. Child custody has been granted to someone other than the child’s parents (not including adoptions);
  2. The parents’ marriage was annulled or the parents are otherwise divorced or legally separated; and,
  3. The child’s parent (the grandparent’s child) is deceased.

With respect to grandparent rights to custody or “parental rights” of a grandchild, courts in Colorado are somewhat more limiting.  The controlling source of law is the Uniform Dissolution of Marriage Act (UMDA), particularly section 14-10-123.  Grandparents may petition a court for parental rights if the grandchild is not under the physical care of his/her own parent or where the grandchild has been under the physical care of a grandparent for six months or more.  If a grandchild was under a grandparent’s physical care for six months and that arrangement terminated, a grandparent may file for parental rights so long as the petition is filed within six months of the termination.  In most cases, the proper motion to file is called a Motion for Allocation of Parental Responsibilities.

From a practical standpoint, in many cases courts tend to rule in favor of grandparent visitation, particularly in cases where the child’s parents are fairly young and dependent financially or emotionally on their own parents (the grandparents).  Courts appear to see a benefit in a child being cared for both at a nuclear level and via extended family, and this makes logical sense.  Because the laws surrounding grandparent rights are not exactly black and white in Colorado courts, any grandparent may benefit by speaking to a local attorney who can help clarify the issues and determine a strategy in those cases where a grandparent’s situation may fit the statutory parameters for grandparent visitation and custody.

Important Tips: Helping Your Child Cope During Your Divorce

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While you may be angry, sad and — admittedly — a little bitter about the end of your marriage, it is important to step back from your concerns about debts, who gets the house, or how much alimony or spousal maintenance you’re entitled to receive, and instead focus on the most important and most unpredictable factor in many divorces: the children.

Nearly half of all children in the United States will witness the divorce of their parents. Of those children, almost half will witness a parent divorce a second time. Statistics have shown that 20% of children of divorce have been shown to exhibit emotional problems including low self esteem and depression, as well as higher incidence of school drop out and a higher likelihood of living at or below the national poverty line.

For many children, the divorce of their parents is the first major crisis they will experience in life. However, there are some things parents can do to minimize this stress in their children.

1. MAINTAIN NORMALCY. Even if you and your spouse cannot agree to anything else in your divorce, you must resolve together to maintain a consistent visitation schedule with the non-custodian parent. Both parents need to be in the loop about school ceremonies, plays, sporting events, field trips and parent-teacher conferences because it is to the child’s benefit that both parents have the opportunity to attend these important events. If you and your spouse are relatively cordial and a family dinner can be arrange, it will only help your child cope with major transition taking place. Allow the non-custodial parent ample time to text, call, FaceTime or Skype his/her children, even if it is at specific times (after dinner and before bedtime, for instance).

1. ANSWER YOUR CHILD’S QUESTIONS. Speak honestly about the divorce and avoid fabricating what is happening. Children tend to be more aware and insightful than we think. You are most knowledgeable about your own child’s level of emotional maturity and you will need to keep this in mind as your talk about what is happening. A teenager will likely understand what it means to divorce, but a 6 year old may just need to be told that mom and dad are not going to live in the same house, but both will stay very involved in the child’s life. Assure your child that he or she will not be abandoned and is no way at fault. Maintain positivity when you talk about the divorce and the other spouse. Save negative feelings and rants for a session with a licensed therapist.

2. REMEMBER TO TAKE CARE OF YOURSELF. If you have children, you cannot be a vacant, emotional zombie during your divorce. Find a way sleep 6-8 hours each night so that you are fresh and alert each day. Take a few minutes to be quiet, to put the divorce out of your mind, and to relax your muscles. If you are interested in meditation, take a few minutes to sit comfortably and imagine a ribbon of energy continuously looping itself from the very top of your head, up into the sky several feet and flowing around through your feet then back up and out of the top of your head. Picture this repeated looping vividly for a few minutes. This type of visualization will allow you to focus on something other than the divorce related details constantly churning in your mind. Eat healthily and fit in some physical activity daily, even if it is just taking your child for a walk around the neighborhood. Remember that your child needs you now more than ever and it is important for you to be the best version of yourself possible for your child. Your child will draw on that strength and calm. If you find yourself slipping into anxiety, unsurmountable levels of stress or deep depression, consult a professional for help as soon as possible so that you can quickly return to being a positive model for your child.

Since it is likely you are reading this article because you are concerned for your child’s well-being during your divorce proceeding, you should be aware that some courts will require a parenting course as a condition of your divorce. In Colorado, and particularly in El Paso County, parties going through a divorce which involves children are required to attend a parenting class called CFIT (Children and Families in Transition). The CFIT parenting class costs approximately $40 at the time of writing this blog post, to be paid in advance. Classes occur at the El Paso County Combined Courthouse several times a month. Parents must attend only one class, and they do not have to attend it together. While many parents believe they know everything they need to know about raising children, most of my clients tell me they left the class with some good information and ideas that help them help ease their children along through this stressful period. Find more information about CFIT, visit its informational page on the Colorado State Judicial Website.

Fortunately, 80% of children of divorced parents have been shown to grow into well-adjusted, productive, happy adults with healthy relationships. Follow the tips above to help your child become part of that majority.

 

 

— Marika Frady, Esq. is an attorney handling Divorce, Family Law, DUI and Bankruptcy cases in greater El Paso County, Colorado including Colorado Springs, Fountain, and Manitou Springs, as well as Teller, Pueblo and Douglas Counties.  Connect with her on Google Plus today!