SGP Law – SGPNC Law

Buried in the stack of papers with the Ex Parte Domestic Violence Protective Order and Summons just handed to you by the sheriff is a trial date. Unless the matter was continued, your hearing will be within 10 days of the ex parte hearing that you most likely did not even know took place.Attendence at the trial is not necessarily mandatory but here is why it is important you are there.

If you decide to not attend the return hearing for the domestic violence protective order a hearing will take place without you. There is a possibility that an order of protection will be entered against you because you are not there to argue why an order should not be entered or why evidence being put on is not accurate.  The judge will only hear from the plaintiff. You will have no say in the conduct that you are barred from doing or places you are not allowed to go which can include schools, offices, parks, and anywhere requested by the party seeking the order.

If you do attend, you will have a chance to defend yourself and possibly demonstrate to the judge there is no basis for a protective order. In certain situations, it may benefit the bigger picture to attend and agree to a consent order without any specific findings of fact in case there are other criminal charges or family issues that may wind up in a different court room.

At the very least, you should bring the paperwork the sheriff handed you to an attorney and discuss your rights moving forward as well as how having a protective order entered against you will affect your life. You may not care about having any contact with the person seeking the protective order, but protective orders have wider sweeping consequences then you may have considered.   An attorney can also help you assess the strength of the statements in the complaint and can discuss with you the best way to approach a domestic violence protective order hearing.

3 Things you can do to help your attorney

After choosing the right attorney, how you work with your him or her will have the biggest impact on the outcome of your case. Do the following things and your case will resolve more quickly, more affordably, and more amicably than you might expect.

What can you do to help your attorney help you?
  • Be honest with your attorney. Your attorney needs all the information in order to adequately represent you. He or she needs your honesty and transparency.
  • Engage with your attorney. Actively work together with your attorney to talk about strategies and approaches to your case.
  • Respond to your attorney promptly. Often there are deadlines that need to be met and if your attorney needs information from you, get them information they need quickly. Missed deadlines will cost you both money and time.

7 Questions to ask when looking for a lawyer

When you are looking for an attorney, chances are you are under both time and emotional pressure. But the choice of an attorney to guide you through the often complicated legal system is an important one. The stakes are high and you want a lawyer who is both honest and zealous.

What should you look for when choosing an attorney? Here are some ideas:
  • Did someone you trust recommend the attorney? What is their reputation?
  • Do you “click” with him or her? Is there a personality connection?
  • Did they put on the clock during your first meeting or did they take the time to hear your story first?
  • Do they have flexible payment plans to work with your financial situation?
  • Do you feel like they genuinely care about your case?
  • Do they have experience in the area of law you need?
  • Do they tell you what they can and can not do for you or do they promise you everything?

How do I change my permanent child custody order?

 

Parents meet with us regularly wanting to make changes to a permanent child custody order.  A permanent order for child custody is a misnomer because permanent orders are never in fact permanent.  The courts have the ability to modify orders that relate to children because what is in the best interest of a child can change over time.

 

The process to change a permanent order is different though and requires a higher standard than what is required to get the initial permanent custody order from the court.  Changing a permanent custody order is possible when the Court finds two things: (1) there has been a substantial change in circumstances; and (2) that change affects the best interest of the child(ren).  The change in circumstances and effect on the children does not have to be bad affect.

 

As an example, Client A has a permanent custody order that has been in place ten months, but the exchange location does not work anymore, so Client A wants to change the order.  Meanwhile, Client B wants to change the custodial schedule that would change the number of overnights each parent has with the child(ren).

 

If Client A wants to change the permanent custody order because there is too much traffic at the current exchange location, Client A will likely not be able to show that a substantial change in circumstances has occurred.  If Client A needs to change the exchange location because Client A has moved further away to another city, there is a better chance of showing a substantial change in circumstances.

 

If Client B wants to change the schedule because the amount of exchanges in a week is having a negative effect on the children’s grades, Client B needs to show what has changed and how that change is now affecting the children.

 

Every situation for changing a permanent child custody order is fact dependent.  It is important to consult an attorney to discuss whether your circumstances meet the standard to change a permanent child custody order.  Contact Stauff, Gross & Privette, PLLC today at 919-783-1260 for a consultation.

I am often asked by clients what they need to do to become a citizen of the United States.  This question has become increasingly common over the last year with the growing uncertainty surrounding immigration issues.  In order to qualify to naturalize as a United States citizen you must meet the following:

  1. Be at least 18 years old.
  2. Be a lawful permanent resident (have a “Green Card”) for five years.

There are two caveats to the five year requirement:

  • If you are married to a U.S. citizen, you only need to be a lawful permanent resident for three years prior to applying for naturalization.
  • If you had refugee or asylee status, you do not need to wait the full five years of being a greencard holder prior to applying.
  1. Have good moral character.

Clients often want to know what being of good moral character means as it’s a broad term.  Generally we look at whether there has been any involvement with the  court system or involvement with the police.  When applying you need to provide a background check for any county in which the potential applicant has lived within the last five years.   We need to fully explore what, if any, encouters with law enforcement or the court system a potential applicant has had.

  1. Be able to speak, read, and write English at a basic level.

There are two exceptions to the langage requirements for older adults who have been in the country for a lengthy time period.  You do not need to meet the basic language requirements if:

  •  You are 55 years or older and have had a green card for 15 years, or
  • You are 50 years or older and have had a green card for 20 years.
  1. Be able to pass a test on U.S. history and government.

There are a total of 100 questions from ten questions are selected for an applicant to answer.  Applicants have access to all questions and answers prior to their appointment in order to be able to study the potential questions they may face.

  1. Swear that you are loyal to the United States.

Prior to applying for naturalization always consult an experienced immigration attorney in order to discuss whether or not there are any red flags in your past that can hinder your naturalization application.  We often come across the follow which can hurt your naturalization application.  (please note: This is not an exhaustive list but simply examples of common issues that come up with naturalization cases)

  • You made trips out of the United States for more than six months
  • You claimed to be a U.S. citizen
  • You moved to another country since getting your green card
  • You voted in the United States
  • You are in deportation or removal proceedings—or—you have been deported
  • You haven’t filed your federal income taxes
  • You haven’t paid child support for your child(ren)
  • You committed fraud to get your greencard
  • You have been arrested or convicted of a crime or you have committed a crime
  • You lied or committed fraud to receive or to continue to receive public benefits
  • You have been charged with committing domestic violence, child abuse, or child neglect

Contact our office at (919) 783-1260 to set up a consultation to determine whether applying for naturalization is right for you.

Social media is everywhere. Some use it to post their every movement of the day. Others use it share their thoughts and opinions. And then there are people who use it to share pictures with friends and families. As social media becomes ever more popular in society, it also works its way into court. Especially family court.

In custody cases, judges must determine what is in the best interests of the child or children. Parents’ postings on social media can give these judges insight into the parents’ ability to care for the child or children, their home environment, the people they associate with, and their thoughts on the other parent. As a result, social media posts are usually very relevant to a custody case.

Social media postings can help a parent or hurt a parent. For example, a posted picture involving drugs and/or alcohol can give the judge the impression that that parent has a drug or alcohol problem that may be affecting the children. While a picture of the parent with the kids at the park can show activities that the parent is doing with the children.

It is best to always think before hitting send, especially on social media as once a post is on the Internet, it can be used against a parent in court. If you would to discuss your individual case, please contact us at 919-576-7550 to schedule a consultation with one of the attorneys at Stauff, Gross & Privette, PLLC.

With tax season coming to an end, many separated or divorced parents probably had to endure the reoccurring dilemma of claiming the children on taxes. As this can potentially be a great tax benefit, it is often a never-ending battle.

If parents agree how to address the deduction, the agreement can be in a separation agreement or a consent child custody or support order. There are several ways to decide which parent can claim the child or children. If there is more than one child, parents can split the deduction by one parent to claiming one child and the other parent claiming the other child each year. Another option is that one parent claims the child(ren) in even years and the other parent claims the child(ren) in odd years. Either of these options of sharing the deduction can be included in a separation agreement or child support order. The benefit of designating how to address the deduction is to have a way to enforce the issue if one parent is not complying.

If the parents do not agree, the judge will decide and include it in a child custody or child support order. The two options listed above are two of the scenarios that judges often include in child support orders. The other option is that one parent is able to claim the child or children each year.

If there is not a child support order or a separation agreement addressing the issue, then the parent who has primary custody of the children has the right to claim the children on taxes each year. That parent has to sign an IRS form to give this right to the other parent.

Oftentimes people wonder what to do if the parent who is not supposed to be able to claim the children files his or taxes first and claims the children. If both parents file their taxes and claim the same child or children, the IRS or Department of Revenue will investigate the tax returns to determine who should be able to claim the children. Such an investigation often delays receiving tax returns or refunds, if applicable, but it will resolve the issue eventually.

If you would like assistance regarding this issue or other family law matters, please call us at Stauff, Gross & Privette, PLLC to schedule a consultation with an attorney who can give you an individual assessment of your case. You can reach us at 919-576-7550.

Part of any consultation with an attorney should include a conversation on how much the attorney’s work and time will cost. Some matters can be handled on a flat fee. Other matters are more traditional “billable” work where the attorney charges for their time by the hour. However, clients will frequently ask if the “other side” can pay those fees. The simple answer is that in some cases, the judge can order the opposing party to pay one party’s attorney fees.

In family law cases, the key to an award of attorney’s fees is to know the particular judge hearing your case because any award of attorney’s fees is largely discretionary. Some judges simply will not award attorney fees. Other judges may do so with the right facts. Judges can award attorney’s fees to one party in child custody, child support, alimony, and post-separation matters. Note that attorney’s fees are not available in equitable distribution (division of the marital estate) cases. Among the various factor’s judges must consider are that the party is acting in good faith, one party has insufficient means to pay the costs of the lawsuit, or one party is a dependent spouse.

Attorney’s fees are available in many other civil matters as a remedy provided by statute. For instance, many employment cases allow awards for reasonable attorney’s fees. So do debt collection matters. However, the moving party who filed the lawsuit must prevail in the case and have included that request in the lawsuit to receive an award of attorney’s fees. Oftentimes, this is a better option for clients than a contingency fee payable to the attorney because the client will not need to share a percentage of the award with his or her attorney. The attorney would get paid separately.

Each situation is case specific. In order to determine whether your case has the possibility for an award of attorney fees, you should consult with an attorney about your specific case. The attorneys at Stauff, Gross & Privette, PLLC are happy to discuss your situation with you.  Please call 919-576-7550 if you would like to schedule a consultation with one of our attorneys.

You went through the whole process of asking the judge enter a custody order that provided a visitation schedule for the other parent. However, that other parent has gone months opting out of visitation with your child. Now that parent is demanding that visitation take place but you have concerns with allowing it to occur. However, the other parent is threatening to hold you in contempt if you deny visitation.

A child custody order signed by a judge and filed with the clerk of court is enforceable by the contempt powers of the court. This means that if either parent is not following the order, the other parent can file to hold that parent in contempt. This is also known as filing a motion to show cause. The motion asks the court to enter an order that the violating parent come to court and show cause why he or she should not be held in contempt of court. If the judge signs the order to show cause based solely on the motion to show cause, the burden is on the violating parent to show cause why he or she should not be held in contempt of court.

A defense to a show cause is whether the violation was willful. In this scenario it is likely that if the primary parent refuses to give the visitation permitted in the order to the visiting parent, the visiting parent will file for contempt. The primary parent must then prove to the court that the lack of visitation was not willful. For example, if the children are in counseling because of the absence of the other parent, the primary parent may want to argue in defense that allowing the visitation would not be in the children’s best interest and that is the reason for refusing the visitation.

These cases are very fact specific though and even with such a good reason, the primary parent may be held in contempt of court for refusing visitation permitted in the order. It is best to consult with an attorney in these situations to try and avoid the harsh repercussions of being held in contempt of a court order.

If you would like to schedule a consultation to speak with one of our attorneys about your case, please call us at 919-576-7550.

You have a child custody order that gives the other parent visitation. However, the other parent is not exercising either some or all of the visitation as detailed in the order. What can you do to detail with the frustration and disappointment?

The other parent’s lack of consistency in visitation can be disruptive to you as the primary caregiver, but it can be even more disruptive for your children. For example, if you are planning on the other parent coming to pick up the children, you get them packed and then he or she does not show up. The disappointment for your children can be hard to bear and deal with as a parent.

The courts view visitation as a privilege and not a right. This means that while you can be in trouble for not following a court order and having the children ready and available for visitation, the other parent cannot be in trouble for not taking the visitation.  A court order does not require that the other parent take the visitation he or she is given in the order. In essence, the visitation is there as an option if the parent wants to take it.

While you cannot file a motion to try and hold the other parent in contempt for not taking his or her visitation, there are options. If the lack of visitation or inconsistency in visitation is having an effect on the children, you can ask the court to modify the order. Modifications you could request can be a decrease in visitation or a required advance notice if the visiting parent is not taking the visitation. Such a requirement would make it easier to ask that the visiting parent be held in contempt for not following the order as he or she has an additional requirement of notice if that parent is not picking up the children.

If you have questions about your case and would like to schedule a consultation with one of our attorneys, please call us at 919-576-7550.