<![CDATA[Alabama Attorney Forum         205.565.8909 - Burdick's Blog]]>Thu, 28 Jan 2016 08:23:50 -0800Weebly<![CDATA[After Divorce, Who has the final say?]]>Wed, 21 May 2014 10:53:29 GMThttp://alabamaattorney.weebly.com/burdicks-blog/after-divorce-who-has-the-final-sayWhen parents decide to divorce decisions have to be made on how to best care for their children after the parents separate. The courts created devices to try and make these decisions. Divorce court is a court of equity and is given the authority to grant the divorce and see to the equitable division of marital assets and liabilities. Equity as defined by Black’s Law Dictionary means: “the spirit and the habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.” Thus, the court’s authority to do equity is the authority to do justice in those specific instances where there is no specific law to direct the court. For instance, if the law of the state dictates that all of the marital assets are to be divided equally, then the court in equity may decide to award the couch and table to one party and two chairs and a rug to the other party.

Equity is supposed to be what is just and fair. However, this authority has been repeatedly misused and misunderstood, and thus been the excuse for a great deal of injustice. Equity has too frequently been the banner under which parents and children have been dealt injustice. Equity does not give the court license to treat parties unfairly. Equity does not give the court the authority to punish the innocent.

There are bounds to equity, even in divorce and custody cases. Those bounds are set by the Fourteenth Amendment of the Constitution, which guarantees all equal protection under the law. When a custody dispute arises both parents have the same rights and liberties. However, it has now become routine that when those parties leave the courthouse only one of those parents will leave with their rights intact. One parent will be given custody and the other will be removed from the child’s life except for occasional visits. One parent will remain a parent and the other will become an acquaintance that helps with the bills. This outcome is said to be equity, but the concepts of justice and fairness are nowhere to be found.

Equity has no authority to rob Justice. Equity is the servant, not the master of Justice. When parents decide to divorce they are making a decision that they want to raise their children in two homes. A judge may believe that this is a “bad parenting decision” but, bad parenting decisions, absent abuse or neglect, do not empower the court to take over parenting decisions. When the court decides in “equity” to unequally distribute parental rights, privileges and responsibilities it usurps the ultimate parental authority over the child. A stranger in a black robe has now taken parental rights and authority from fit parents and delivered it to the state. This may sound like a cold, harsh exaggeration, but consider who really has authority to direct the upbringing of the child when the parties leave the court. If mother and father do not agree on where the child should go to school, if the child needs braces, how many extracurricular activities are in the child’s best interests, etc., then it is back to court the parties go and the state through a judge will now be making all final decisions.

How much simpler it would be if the court simply refused to interfere in parenting decisions.]]>
<![CDATA[Is McLendon any Better than the Tender Years Doctrine?]]>Tue, 15 Apr 2014 15:49:29 GMThttp://alabamaattorney.weebly.com/burdicks-blog/is-mclendon-any-better-than-the-tender-years-doctrineThe Courts have long held that a custody determination cannot be based on something arbitrary, such as the sex of the parent. Ex parte Devine, 398 So. 2d 686 (Ala. 1981). Under McLendon custody determinations are not expressly based on sex but they are nonetheless arbitrary. Because parental rights are fundamental liberty interests they cannot be infringed upon for an arbitrary reason. In fact, parental rights can only be infringed upon by the state, if the state can show a compelling state interest. Ex parte ERG, 73 So. 3d 634 (Ala. 2011); Troxel v. Granville, 530 U.S. 57 (2000). McLendon itself never performed a constitutional analysis and never specifically identified what state interest is involved. However, a review of the opinion offers two possible bases for the McLendon standard, to wit: the state’s interest in the finality of orders, and a feared harm that the child will be harmed by uprooting it from a single parent situation. Both of these reasons are arbitrary and serve no compelling state interest.

As a general rule the state (and its appendage the courts) has an interest in bringing matters to a conclusion. The state has adopted general principles of law such as res judicata and estoppel that ensure that court cases acquire some sense of finality and have binding effect on the parties. However, custody cases are specifically exempted from such principles and the court maintains continuing jurisdiction over a matter throughout the youth of a child. The law, and rules of procedure, offers the parties the option of modification at any time. The state’s interest in creating finality in custody matters has always been subservient to constitutional concerns. The U.S. Supreme Court held: “the Constitution recognizes bigger values than speed and efficiency.” Stanley v. Illinois, 405 US 645, 656 (1972). The fundamental liberty interests of parents and children are “bigger values” that cannot be interfered with to facilitate the state’s desire for efficiency. In truth, if the state’s interest in efficiency were paramount then there would be no need for the McLendon standard at all, as no modification actions would be allowed. Thus the idea that the state’s interest in efficiency and the finality of orders as a compelling state interest may be dismissed out of hand.

McLendon also presumes that moving a child will negatively impact the child. However, this assumption is not based on or supported by any law, legal theory, statute, sociological data, or psychological data. It is nothing more than a homespun creature of rhetoric. The drafting judge simply assumed that “stability” was to be preferred and that stability could be achieved by his newly concocted standard that we now know as the McLendon standard. Unfortunately as previously discussed the McLendon does not satisfy the goal of stability. Stability for children comes from having strong relationships with both of their parents. Science has confirmed what God, nature and centuries of human experience have shown, that a child should have both parents whenever possible.

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<![CDATA[Consult the Constitution...but only if you have to.]]>Tue, 30 Oct 2012 20:34:12 GMThttp://alabamaattorney.weebly.com/burdicks-blog/consult-the-constitutionbut-only-if-you-have-toToo frequently our courts allow the administration of justice to get in the way of, and prevent justice. Our laws and our rules of procedure are designed to ensure that justice is done. However, they are frequently used and applied to another end. As a general rule our courts look first to the rules for justification of their decision to not address the merits of a case. They use the rules as a license to do injustice or at the very least ignore justice.

The courts are generally loath to address constitutional issues. Preferring rather to dispose of a case on lesser or procedural grounds if possible. This analysis like water seeks to follow the path of least resistance. Unfortunately, we have reached a point in the development of our republic where we can no longer abide judges nor analysis which is weak as water.

The Constitution is the basis for our laws and the foundation of our republic. I fear that when we avoid or ignore the Constitution we do so at the peril of the republic.

The Constitution has gathered much dust in the law offices of my colleagues. Truly, more than 90% of all attorneys, if asked, would have to confess that they have not made a constitutional argument on behalf of a client in the last year. This is tragic and it has spilled over into the general population. How many of us as citizens have looked at the Constitution in the last year?

The Constitution is the fundamental law of the land. When we practice law without the Constitution we can expect to do no better for the republic than a football team that ignores the fundamentals of blocking and tackling.

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<![CDATA[Is DHR helping you?]]>Thu, 02 Aug 2012 17:34:38 GMThttp://alabamaattorney.weebly.com/burdicks-blog/is-dhr-helping-youIs DHR helping you collect child support?
I was in domestic relations court today. My client is currently ordered to pay $400.00 per month in child support plus arrearages. My client has been paying his child support each month with an additional $100.00 toward the arrears for the past several months. The attorney for DHR made it clear that he did not represent the mother in this case but in fact representef only "the program"  meaning IV-D services. He quickly explained to me that he wanted to put the father in jail in spite of his consistent payments. He explained that it was the best thing for "the program." I protested, "if you put the father in jail his payments to mother will be reduced to $0.00. That certainly does not serve the interest of the child or the mother." DHR's attorney remained indifferent and went on to explain that "the program" would be served if he were to make an example of my client even if doing so harmed the mother and the child. I also over heard the judge explain that she had received instructions from the presiding judge of the circuit that the jail was overcrowded and that judges were to avoid issuing writs of arrest for persons that were not dangerous or violent. She then stated that she considered all persons who had not paid child support to be dangerous. So it looks like a man consistently paying child support is dangerous and must be jailed if he cannot pay all child support arrears immediately. I doubt that mother or child feel safer now that a father who has never threatened anyone will be off the street. And we can all feel safer knowing that mothers and children are of little or no concern to DHR. After all "the program" must be protected. If you are a mother expecting DHR to help you, remember you swim at your own risk. 
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<![CDATA[Unintended consequence of TC v. Mac. M ]]>Tue, 29 May 2012 15:17:05 GMThttp://alabamaattorney.weebly.com/burdicks-blog/unintendedconsequence-of-tc-v-mac-mLast week's Alabama Supreme Court decision, T.C. v. Mac. M. and Mar. M. may carry with it a very dangerous side-effect. The court undertook to determine appellate jurisdiction of Juvenile Court matters in lite of recent changes to the Code of Alabama. The court determined that the changes in the code did not increase jurisdiction of these matters. Essentially, though the statute changed, jurisdiction did not. However, what is troubling is that now a path has been prepared, through the Court's factual analysis of T.C., that should a trial court so choose they can essentially prevent all appeals of dependency findings. The Juvenile Code allows for dependency proceedings to be split into two hearings. First a dependency trial is held wherein the court determines if the child is in need of care/supervision of the state. Then the trial court can set the matter for a later dispositional hearing where the custody of the child is set forth. If the trial court at the time of a finding of dependency simply puts on its order that it is granting "pendente lite custody" as opposed to "temporary custody" the order will not be appealable. Then the court may enter "pendente lite" orders in perpetuity. A parent could lose custody of a child without any recourse simply because the trial court made a poor word choice when it entered its order. It is neither uncommon nor unheard of for cases to continue longer than a year between dependency and disposition. This fact seems to have been ignored by the Alabama Supreme Court. This case emphasizes the need for Family Court Attorneys to scrutinize orders and make sure their client's don't get caught in such a bad situation with no way out.]]><![CDATA[Should I appeal my case?]]>Fri, 25 May 2012 14:06:33 GMThttp://alabamaattorney.weebly.com/burdicks-blog/should-i-appeal-my-caseIf you are unhappy with the outcome of your case you need to begin taking steps to correct injustice immediately. There are strict time limits and procedural rules that must be adhered to so that your appeal can be preserved and heard. You must file a Notice of Appeal within the time allowed by law or your appeal will be dismissed. The time you have to file your appeal differs depending on the kind of case that you have and what court held your initial trial. For instance, if your case was a dependency, termination of parental rights, delinquency or other family court case heard in the district court you will only have 14 days to file your Notice of Appeal. Also, you need to understand where your appeal is going to be heard. Some appeals such as those from municipal court and others will simply be transferred to the circuit court in the county and you will get a new trial. Other appeals such as those from the circuit court or from a family court case where a record exists will go to the Alabama Court of Civil Appeals or Alabama Court of Criminal Appeals. Still other appeals would be appealed directly to the Alabama Supreme Court. Preparing your case for appeal may also mean that you need to file other post-judgment motions with the trial court to properly preserve the record and position yourself for appeal. These motions also must be filed timely. If you are considering appealing your case call us as soon as possible. The clock is ticking and you don't want to lose out simply because you filed too late. We have the experience necessary to assess your case and guide you through the appeal process.]]><![CDATA[Is this a good criminal plea deal?]]>Thu, 05 Apr 2012 13:23:55 GMThttp://alabamaattorney.weebly.com/burdicks-blog/is-this-a-good-criminal-plea-dealThere are a lot of factors to be considered when entering a plea in a criminal case. Every case is different but here I will discuss some of the factors that will be considered when a plea is offered, negotiated and accepted or rejected. The state should begin by making an offer that fits within the law. Your attorney is there to make sure that the offer does not fall outside of what the law allows. For instance, if you are accused of stealing a pack of gum the state cannot legally make an offer of 20 years in prison. Each crime carries with it a classification (e.g. Class A felony) and a range of sentence. That range of sentence may be enhanced by other factors contained within the code such as the use of a firearm in the crime or commission of a crime in close proximity to a school. Alabama also has a Habitual Offender Statute that will likewise enhance punishment if you have previously been convicted of a crime. The state also has Sentencing Guidelines that are frequently used to determine an appropriate sentence. The Sentencing Guidelines are worksheets that can be filled out. A numerical score is given based on your criminal history and if that number reaches a certain threshold prison time may be recommended. The nature of the crime - whether it was violent or not - will also be a factor. Your conduct in jail or while on bond will also affect the offer of the state. For instance, if you decide to leave the state and have to be extradited that will affect the states offer. Internal policies in the District Attorney's office may be a factor as well. The temperament of the Judge may require consideration as well. All this to say that you need to have a lawyer that is well versed in the law and the process to be sure that you are making the right plea deal.]]><![CDATA[File a Small Claims Case in Alabama]]>Thu, 29 Mar 2012 13:03:17 GMThttp://alabamaattorney.weebly.com/burdicks-blog/file-a-small-claims-case-in-alabamaIn Alabama civil courts where you file your case depends on the amount of money in controversy. If you are suing for more than $10,000.00 you will file your action in the circuit court. All cases for $10,000.00 or less fall under the jurisdiction of the district court. Any case for $3000.00 or less would be considered a small claims court case. All small claims court cases are handled by the district court. The state provides forms that  can be used for filing an action in small claims court. by going to  http://eforms.alacourt.gov/ on the menue on the left side you will see "Small Claims." Click on "Small Claims" and a list of PDF forms will appear in the center of the screen. Print a Statement of Claim/Complaint and a Summons and fill them out. These forms will need to be filed with the District Court Clerk in the county in which the incident took place or the defendant resides or you reside. You should call the District Court clerk's office before you file your case to see exactly how much the filing fee will be as filing fees differ from county to county and change with some frequency. The forms can be filled out very easily and need only put the defendant(s) on notice as to what you are claiming. The summons likewise is a simple form. Once you have filled out the forms you will want to take the originals and a copy for each defendant and a copy for yourself to the District Court Clerk along with a filing fee. The clerk will ask how you want the complaint served. You can either have it served by the sheriff, constable or by certified mail the fee for each is about the same. I recommend that you either have it served by certified mail or constable, either will be quicker than by sheriff. When filing the clerk will take all of your copies and return one back to you with a stamp on it indicating that it has been filed. 

Once the copies have been served on the defendant(s), the defendant(s) will have 14 days to file an answer. If they fail to do so you can ask the court to enter a default judgment in your favor for the amount claimed. The Application for Default form can be down loaded from the "Civil" section of the eforms site listed above.

If the defendant(s) file an answer you will then be given a trial date. At the trial you will be allowed to present the case and submit the matter to the Judge for entry of a final judgment. If you are not satisfied with your judgment then you may appeal your case to the circuit court and have a new trial. If you are satisfied with your result you can contact me and I will help you collect your money. Good Luck! and call us if you need any help.]]>
<![CDATA[Termination of Parental Rights]]>Mon, 26 Mar 2012 14:34:42 GMThttp://alabamaattorney.weebly.com/burdicks-blog/termination-of-parental-rightsIn order to terminate the parental rights of a parent the petitioner (DHR) must show by clear and convincing evidence that (1) the parents are unable or unwilling to discharge the duties of a parent, (2) the parents will be unable or unwilling to discharge their parental duties for the foreseeable future, and (3) that every alternative to terminating parental rights has been exhausted.

"Clear and convincing evidence" is an elevated standard of proof. In most civil cases the standard of proof is that of a "preponderance of evidence." That means in most civil cases where litigants are suing for money damages they must only show that it is more likely than not that they were harmed and are due compensation. In family matters the standard is elevated because we want to be absolutely certain before we infringe upon someone's constitutional rights and interfere with their right to parent their child. In essence, the law is written such that the scales are tipped in favor of a parent who has not previously been shown to be unfit. This places a heavy burden on DHR that must be scrutinized by the court.

Therefore DHR must show, by this elevated standard, that the parent is currently unwilling or unable to care for their children and that the parent will remain so for the foreseeable future. That means if DHR is trying to terminate your parental rights they must show that you have been unfit in the past, that you are unfit today, and that the evidence indicates that you will remain unfit in the future. If they cannot prove unfitness for each of these time periods then they should not succeed in terminating parental rights.

DHR must also show that there is no other alternative to termination of parental rights. If the children could have been placed with a relative, or if there is something else that could have been done to resolve the family's issues then the case is not ripe for termination. If you have had a case where you feel the court has wrongfully terminated your rights then you must act quickly. Your time for appeal is limited to 14 days. You must call an attorney as soon as possible to protect your rights and your family. ]]>
<![CDATA[Importance of an initial custody determination]]>Fri, 16 Mar 2012 13:58:03 GMThttp://alabamaattorney.weebly.com/burdicks-blog/importance-of-an-initial-custody-determinationBefore any dependency or divorce with children involved comes to a conclusion an order must be entered determining the custody status of children. Though these custody determinations are never considered "final" in the sense that the court maintains jurisdiction over the matter, these determinations have a lasting effect on the children, the parents and the case. Before a custody determination has been made parents enter court on equal footing and on higher ground than all other third parties that seek custody of the children. The law presumes that a parent is the best person in the world to raise their own children. This presumption is referred to as the Terry presumption. Essentially, the Terry case held that parents have a constitutional right to raise their own children. However, the law does not prefer mothers over fathers or fathers over mothers. Though litigants often feel that one party is favored there is no presumption in the law that favors one parent over another. If the court does favor one party over the other based on gender then the law has not been applied correctly. If it can be shown that one party is unfit then that determination will effect custody. The court is to be guided by the best interests of the child when making this initial custody determination.

After a custody determination has been made and the case is closed the playing field is no longer level for the parents. The custodial parent now has the high ground. If the non-custodial parent wishes to modify custody he/she must now meet a more rigid standard than the "best interests" standard. The non-custodial parent must now meet the McLendon standard. He/She must be able to show not only that it is in the best interest of the child for custody to transfer but that there has been a material change in circumstances and that the benefits of changing custody outweighs the harm that would come from uprooting the child from their current home and social environment. This standard is very difficult to satisfy. Recent cases have softened the requirement regarding the weight given to the harm of uprooting the child but the "material change in circumstances" requirement remains quite rigid. The material change in circumstances requirement is difficult to prove. For instance, in a case where children were removed from a parent based on a parent's drug addiction full rehabilitation from the same was not sufficient to show a material change in circumstances. Being better able to care for your child is not enough to satisfy this higher standard. Further, if a parent loses custody to a non-parent and a case closes that  parent also loses the Terry presumption discussed above.

The point is that a parent must fight tooth and nail to maintain custody of their children. If they can help it they should not allow a case to close with any thing less than true joint physical custody. Anything less will cause that parent to have to fight an uphill battle to regain custody.]]>