Service of Process, make sure it is valid

Mar 20

Had a conversation with a friend recently and the subject of service of process came up. They told me that anyone over the age of 18 who  is not interested could do it. I told them not anymore.

A lawsuit is started when the complaint is filed. It and a summons then need to be served on the Defendant(s). Until 2011 anyone who was not an interested party and over the age of 18 could serve a summons and complaint. In 2011 the Nevada legislature passed NRS 14.027 which requires service to be served by licensed process serves or else the judgment is void.

What’s the big deal you ask? Licensed process servers are more expensive than having a friend serve the summons and complaint. Many people who represent themselves in court will use a friend to serve the summons and complaint, to save money. They don’t know that their case can be thrown out because of this.

Why the requirement for licensed process servers you ask? It turned out that back in the day there were many fraudulent affidavits of service filed. The courts realized that the affidavits of service were fraudulent when those who were allegedly served proved that they were out of town, in the hospital or otherwise not present when allegedly served.

The moral of the story? Get a professional to do the service of process. Otherwise, someone like me will move to get the service tossed.

Social Media Posts as Evidence

Mar 10

Today most people post items about themselves and others on various social media sites. People need to remember that these postings “can and will be used in a court of law”. There is no expectation of privacy when something is posted on social media.

One example is a person says they have not been working and have minimal income. This has been the case for over a year. Yet at the same time they post picture of themselves in social media on vacation in the Caribbean. This gets brought up in court and that person’s credibility is now non-existent.

Another example is a person cries poor and can’t afford their child support. They have the paystubs to prove that but it is suspected that the person is working under the table. The person brags on social media about buying a great car. That posting goes into court and is used against them to increase child support.

Before you think about deleting any social media postings remember that 1) nothing is truly deleted on the internet and 2) it may be considered spoliation of evidence and that is a felony.

Best advise, if you suspect there may be litigation or it has already started don’t post anything on social media and don’t delete anything that you have already posted. The same goes for email. The e in email stands for evidence.

Joint Legal Custody and Vaccinations

Mar 04

When parents share joint legal custody they are required to discuss and agree on all major decision about the children, including school, medical and religious matters. One seemingly easy decision should be vaccinations. If both parents agree to either vaccinate or not vaccinate there is no problem. However when one parent wants to vaccinate and the other doesn’t there is a problem. There are many reasons why a parent might not want to vaccinate children such as religious or fear of potential  medical consequences of the vaccination. Conventional science holds that negative consequences of vaccines are far outweighed by the benefits.

There are  options in this situation:

1.  One parent unilaterally has the children vaccinated  without the other parent’s permission or knowledge. While this is a violation of the joint legal custody provisions the court will probably not do  anything about it after the fact because the argument can be made that vaccinations are in the child’s best interest.

2.  Take the matter to court. In this option the parent who opposes the vaccination needs to have a very good reason for opposing the vaccinations. The best recommendation is to have a medical professional express with medical certainty that the harm or potential harm in vaccinations to the child outweigh the benefits of the vaccination.

Should you have any questions, please do not hesitate to contact us.

 

Health Insurance, Taxes and Court Orders

Feb 26

In custody orders court routinely award the parents joint physical custody, order one or both parties to provide health insurance and order the parties to divide the tax credit if there is more than one child or alternate the tax credit if there is only child.

Life has just gotten more complicated. If a person buys health insurance at Healthcare.gov, one can only get health insurance for a person you claim on your taxes. So if the parents alternate the tax credit on a yearly basis then the health insurance gets changed on a yearly basis. If the parties divide the tax credits because of two or more children then the children could be covered by two different health insurance policies.

Lets add another complication. One parent is on medicaid and the parties are dividing the children for tax credit purposes. Medicaid is going to take the income of both parents into account.

This is not a show stopper. It means that this is one more issue that has to be addressed in court and in the order. The parents will have to decide if they want all the children on one insurance policy and then do the math to make sure that the cost of health insurance and benefit of the tax credits are balanced. Unfortunately this adds one more complication to an already tense relationship.

If you are in this situation, call us we can help.

Drone Insurance

Feb 24

Saw an article today in Aviation Week and Space Technology News about companies offering insurance for drone or more properly UAS systems and how insurance companies may affect their design. So I did some research and there are insurance companies that provide policies for UAS operators, public, commercial and private. The insurers may issue requirements for the design, manufacture and operation of drones and then test them to see how reliable they are. This is not without precedent as auto insurance companies fund two non-profit organizations, the Insurance Institute for Highway Safety and the Highway Loss Data Institute. Both organizations provide input into the design of cars and roads.

If Both Parents Are On the Birth Certificate They Share Joint Physical Custody Unless a Court Says Otherwise

Jul 08

In the case of Druckman v. Ruscitti, the Supreme Court held that an affidavit of paternity pursuant to NRS 126.053 vests parenthood with equal custody rights.  That means unless a court says otherwise, the parents listed on the birth certificate share joint legal and physical custody. Neither parent controls. What that will mean in Court is anyone’s guess, since it didn’t change the outcome of this case: Mom was granted primary physical custody with permission to relocate.

Click here for the full opinion:

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