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Legal FAQs

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Personal injury FAQ

What are the types of personal injury cases that the Rockefeller Law Center handles?

The Rockefeller Law Center is a full-service litigation law firm, having assisted numerous satisfied clients with Automobile Wreck, Slip and Fall, Wrongful Death, and Premises Liability cases in State and Federal courts throughout the Southeastern United States.

What are the main issues which come up in personal injury cases?

There are two (2) parts to a personal injury lawsuit.  First, liability must be determined. This answers the question whether or not the defendant engaged in any wrongful conduct.  Second, damages must be assessed. This determines how much money should be paid to the plaintiff because of a defendant’s wrongful conduct.

How are damages determined in personal injury cases?

There are two (2) basic category of damages in a personal injury case – “special damages” and “pain and suffering.”  Special damages are your “actual” damages shown from your medical bills, lost wages, and similar types of out-of-pocket expenses. Pain and suffering damages are proven by relying on testimony of how much the plaintiff and his/her family were affected by the wrongful conduct.

If I don’t have any special damages can I still sue for my pain and suffering?

Maybe.  Some legal claims actually require proof of special damages before a jury considers pain and suffering damages. However, except in relatively rare cases, even if your type of legal claim does not require this proof, if you do not have relatively significant special damages, your case is probably not worth much money.  These cases may have value to you, because of the insult of the injury you have received, but you may find yourself spending more money prosecuting your case than you might hope to recoup from a jury award.

If I have declared bankruptcy before, or file for bankruptcy during the pendency of my case, will this affect my claim?

Yes.  Declaring Bankruptcy can seriously compromise your lawsuit.  If you, or a spouse, have ever filed for bankruptcy, are currently in bankruptcy, or you file for bankruptcy while your personal injury lawsuit is on-going, you must immediately notify your attorney of this fact!

Do I have any responsibilities in helping the development of my case?

Yes.  Your attorney will probably provide you with some forms to fill out; these will assist your attorney in building and assessing your claim.  In particular, you will need to provide your attorney with a “statement” of what happened and how your injury has affected your life – if possible, keeping a “daily diary” of the pain and/or limitations you experience from day-to-day due to your injury  You will also need to assemble a “witness list.” A witness is somebody who either knows how you were injured (from seeing it or hearing of it), who knows about your injury (such as by attending doctor’s appointments with you), or who knows about how the injury has affected your life (such as watching you struggle at work or struggle with your ability to live a normal life). 

Do I file a complaint as soon as my attorney finishes an initial investigation of my claim?

No.  Generally speaking, your attorney will first want to incorporate your statement, your witness statements, your medical records, medical bills, and lost wages into a document called a “demand letter.”  In this demand letter, you and your attorney ask for a specific amount of money damages reasonably based on the evidence assembled in this presentation. {Something about settling vs. going to trial.]

How long does it take to generate a demand letter?

The timetable for this varies by case, as it largely depends on how long you treated by a medical provider.  Generally speaking, your attorney will not want to prepare the demand letter until you have completed all of your medical treatment.  This is because you do not want to settle the case until you know the true extent of your injury. Remember, once you settle, you cannot go back and ask for more money.

Are there any other issues that might affect my settlement?

Yes.  There are two (2) instances where you might have to use some of your settlement money to pay someone else – to reimburse your health insurance company (“subrogation”) and/or to reimburse a medical provider (“medical lien”).  You will want to consider both of these possibilities in deciding what type of settlement you consider fair.

Subrogation is where your health insurance company (which would include Medicaid or Medicare) argues that you are required to repay it from your settlement or verdict for some, or all, of the money it spent on your medical treatment based on the contract language in the insurance plan.  The law in this area is extremely complicated and still evolving, but you should consider the fact of possibility of subrogation in evaluating your case.  Your attorney can negotiate with your insurance company, Medicaid, or Medicare, to reduce subrogation claims to a relatively small percentage of the overall claim.

A medical lien is where you owe money to your doctors or medical providers.  There are certain rules that a health care provider needs to follow in asserting its rights to a share of your settlement or verdict, but there is always the possibility you can be sued, after the fact, for breach of contract for not paying your bill.  Again, your attorney can negotiate with your health care provider to reduce the amount owed on a bill to a relatively small percentage of the overall claim.

Ok, I have a grasp of what the future holds, now how can I expect my case to progress if I file a complaint?

After a complaint is filed, the other party will respond with an Answer, approximately thirty (30) days after the defendant is “served” with the complaint.  The Answer will determine which factors are being disputed and any counterclaims that are going to be at issue.

Going to Court ...

  • DISCOVERY       
    By Georgia statute, there is a six (6)month Discovery Period designed so that both parties can obtain as much information to aid their case as possible (in Federal Court, the judge sets a discovery schedule with rules very similar to those described below).  This includes both parties asking and answering general questions, providing financial documentation, and other relevant information that may be requested.  This is a useful, and relatively inexpensive, process to find out more about the other parties’ case.

  • DEPOSITIONS       
    Either side can also schedule depositions.  These are opportunities for attorneys to question all witnesses and litigants under oath about what they might testify.  A deposition is a powerful device.  At a deposition, an attorney can learn exactly what the witnesses will say, before trial, and try to come up with a strategy that either takes advantage of the sworn testimony or to counteract it.  If you can afford to have an attorney take depositions, and your case is going to be strongly contested, you should consider authorizing your attorney to do so.

  • MEDIATION
    When the Discovery Period is over (or even before), the case could go in many different directions (keep in mind that either a plaintiff or a defendant is always at liberty to offer a settlement at any point in the process).  Mediation may be required before your case can go to trial.  A Mediation is a meeting between the two parties with a mediator to attempt to resolve the case before trial.

  • TRIAL
    If the parties cannot agree, they may move forward with a jury trial or a bench trial (where only the Judge presides).  Jury trials are more common, as a judge can only be permitted to decide a case if all plaintiffs and defendants agree to waive their rights to a jury trial. There is no hard and fast rule over how long it takes to obtain a trial after initially filing a complaint and/or how long a trial lasts.  Generally, it takes about eighteen (18) months to two (2) years from filing to obtain a trial date.  And, most jury trials take a day or two to try.

  • POST-TRIAL
    After jury trial, either party can appeal the jury verdict.  If a case is appealed, you an expect up to another year for the case to still be unresolved.  If the original trial verdict is reversed (almost always because of a “legal” error, as opposed to a claim that the jury reached the wrong decision), it goes back for another trial and potentially another round of appeals.  In order to avoid appeals and delaying the jury verdict being final, sometimes a settlement is reached, after the jury verdict, for something less than what the jury ordered.

Father's Rights FAQ

What does "paternity" mean?

Paternity is a legal word for "fatherhood". When you establish paternity, this means that you have gone through a legal process to identify a man as the biological father of a child.

How may the paternity of a child be established?

Paternity of child can be established in the following ways:
  • The mother and father can sign a voluntary acknowledgment of paternity. This acknowledgment form is recorded in the putative father registry maintained by the Department of Human Resources.
  • The mother or the father or any other person allowed by law to start a paternity action may file a petition in the Superior Court or the State Court to establish paternity.
OR
  • If the Department of Human Resources seeks to establish paternity of a child, the Office of State Administrative Hearings has the authority to decide the issue of paternity. However, the man who has been identified as the putative father can deny that he is the father of the child and demand a trial in the Superior Court.

Who can start an action to establish paternity?

An legal action to establish paternity of a minor can be brought by the child, the mother of the child, a person who is alleged to be the father, any relative taking care of the child, and, in certain circumstances, the Department of Human Resources (in the name of and for the benefit of the child).

Does the mother of the child have to be a party to the legal action and does she have to be notified?

If the mother is subject to the jurisdiction of the court where the petition for paternity has been filed, she must be a party to the law suit. If she is not subject to the court's jurisdiction, she must at least be given notice of the petition for paternity and she must be given an opportunity to be heard in the court.

After paternity is established, does the father have any rights to the child?

Under Georgia law, the birth mother is the only person entitled to custody of a child born out of wedlock, unless the father has gone through the process of legitimating the child. In a paternity action if the court finds that a man is the father of a child, the court can also order that the man have visitation rights with the child (if the court finds that visitation would be in the best interests of the child).

If the father's name is on the birth certificate, does he have any rights to the child?

Under Georgia law, the birth mother is the only person entitled to custody of a child born out of wedlock, unless the father has gone through the process of legitimating the child. This is the case even if the father's name is on the birth certificate. The father must go through legitimation to have rights to a child born out of wedlock.

Does it matter if the father's name or social security number is on the child's birth certificate?

If a man's name or social security number is on the child's birth certificate and someone files a petition to establish paternity, the burden of proof is on the man to prove that he is not the father. If the birth certificate of the child does not contain any information about the father, the person or agency that filed the paternity action must prove that the man is the father.

Can DNA testing be used to prove or disprove paternity?

Any party to the action may make a motion for the court to order DNA testing. The court must grant the motion unless someone shows that there is good cause not to order DNA testing. The person who requests the testing is responsible for any costs of the testing.

What is the result of a finding that the man is the father of the child in a paternity case?

If the court finds that a man is the father of a child, the father has a duty to support the child financially. This means that the man must pay child support. The court's order may also provide that the father has the right to visit with the child (visitation privileges) if the court finds that visitation would be in the best interests of the child.

Child Support FAQ

How is child support decided?

Child support CAN be left up to a jury, if either parent request a jury trial on this issue.  Because it is for the child’s benefit, child support is really not based on the custodial parent’s economic needs, although that can be a factor considered by the judge; it is based almost entirely on a percentage of the non-custodial parent’s average gross (before taxes) monthly income.  This can be proven by tax returns or, in the case of a self-employed or business owner, looking at other factors.

Generally speaking, child support is set at the middle range of the applicable guideline ranges, for the first $75,000.00 annual income of the non-custodial parent (unless there is another child for whom non-custodial parent is legally required to provide support):

Do I have to pay Child Support?

Child support is for the child’s benefit and cannot be waived by either parent.  If the parties want to agree to less than what the guidelines call for, they must ask the judge to make specific findings of fact permitting the judge to “deviate” downwards.  Child support, because it is for the child’s benefit, is really not based on the custodial parent’s economic needs; it is based almost entirely on a percentage of the non-custodial parent’s average gross (before) monthly income.  This can be proven by tax returns or, in the case of a self-employed or business owner, looking at other factors.

Can the parents agree to neither parent paying any child support?

Not really.  Again, child support is for a child’s benefit and cannot be waived by either parent.  If the parties want to agree to less than what the guidelines call for, they must ask the judge to make specific findings of fact permitting the judge to “deviate” downwards.  Examples would include: that a child spends equal amounts of time with both parents (shared legal and physical custody); the parents are equally splitting major expenses; one of the parents earns substantially more money than the other parent.

Does the original order of support ever change?

Either party is permitted to seek a change of support, once every two (2) years.  For instance, immediately after a divorce, one party may seek a change of support, but then that party has to wait two (2) years before seeking another change.  However, within that two (2) year period, the other party could seek he or her request for a change of support (and, then that party would have to wait also).  The request for change of support needs to be based on significant income or circumstances changes; seeking a change of support without sufficient factual basis for doing so, is a waste of time and money.

Custody FAQ

What are the legal issues when “custody” of the minor child(ren) decided?

Whether it is a divorce action or just a straight custody one, the main issue is the same, i.e., what is in the “best interests” of the minor child(ren)?  If there has NOT been a prior LEGAL determination of custody, the biological parents start out with equal rights and on an equal legal footing – neither the mother nor the father starts out with an advantage, or disadvantage, with respect to custody decisions, despite what people may generally believe.  This is even true in legitimation cases, where a biological father sues to establish his rights to a child born out-of-wedlock.  Hence, mothers need to be careful not to assume that they will ALWAYS win custody battles and fathers need not be discouraged that they will USUALLY lose custody battles.  The final decision always comes down to which parent might be the best “caretaker” and what is best for the child(ren).

What is the difference between the “primary physical custodian” and the “non-custodial parent”?

One of the parents is usually designated by the court as the “Primary Physical Custodial Parent.”   This is the person whom that court has decided is best situated to provide a child with a warm, stable, loving, and moral environment and with whom a child will be primarily staying.  The PPCP will be responsible for most of the parental responsibilities, although they can be shared with the other parent.  Most importantly the PPCP has “veto” decision over all of the major decisions affecting a child’s life, such as which school to attend, which doctor to see, what extracurricular events with which to participate, which church, synagogue, temple, or mosque to regularly attend (if any), .... etc., and the other parent is powerless to object, unless the PPCP can be later shown “unfit” a very difficult prospect.

One of the parents is usually designated the “Non-Custodial Parent” and pays child support.  This is the parent with whom a child either does not live or does not ordinarily live.  The “non-custodial parent” is required to pay child support, based on a percentage of the first $75,000.00 of the non-custodial parent’s salary, any disparity of income between the two (2) parents, the number of children shared between the parties, and the number of other children being supported by the non-custodial parent.  There are some factors that can reduce the percentage used to calculate the child support owed, such as shared custody, transportation expenses, health insurance expenses, and other factors.

What types of legal custody are there?

There are three (3) general types of custody – Sole Custody; Joint Legal Custody; or Shared Legal and Physical Custody.  The judge decides which one to choose for each specific case, based on what is in the “best interests” of a child, however, there are some general concepts they judge will be applying.

  • Sole Custody – Is where one parent has all of the legal rights a parent may have and the other parent only has, at best, some type of minimal visitation rights (usually supervised, if at all).  Most of the time, when a judge is making a finding of “sole custody,” the other parent ends up with nothing.  This RARELY happens and only if the other parent is shown to be “unfit” – a career criminal, domestic violence batterer, chronically addicted to a chemical or alcoholic substance, child molester, or truly “bad” parent.

  • Joint Legal Custody – Is where both parents have the same legal rights, one of the parents is designated the “primary physical parent” and the other parent is designated the “non-custodial parent.”  Judges will almost always favor this arrangement in a custody fight and the parties are fighting over who will be the primary physical custodian and non-custodial parent and/or about the visitation schedule.  Judges feel that this arrangement is typically best for a child and gives both parents the most opportunity to be a part of a child’s life.

  • Shared Legal and Shared Physical Custody – Is where both parents have essentially the same legal and physical custody rights.  Judges will RARELY favor this arrangement in a custody fight, as it only works if the parties are getting along and the fact that they are in court indicates they do not.  This arrangement, therefore, ONLY works if the parties agree to it – we generally discourage such agreement as it is usually NOT best for the children, invites litigation down the road, and makes for a messy situation.

What does the standard “best interests” of a child mean?

Georgia law favors a child having both a father and a mother involved in their life – this means that judges will generally try to decide custody battles to preserve that BOTH parents have the best possible relationship with their child(ren).  On the other hand, most judges assume that the parents cannot get along enough to put a child’s interests first; that is often why you have a custody fight in the first place!  So, a judge has to decide, as between the two (2) parents which would be the best parent.  In doing so, a judge will look at a number of factors (this is not an exhaustive list or in any particular order of importance) like:

  • Which parent is more “stable,” i.e., is likely to live in one place and not move around?
  • Which parent has the best and most stable job situation?
  • Which parent seems to be the most grounded in what is best for the child?
  • Which parent is already the “primary caretaker” (probably the most important factor), putting a child to bed at night, feeding a child, taking a child to the doctor or most involved with a child’s school, including homework, . . . , etc.?
  • Which parent has the best temperament and attitude towards raising a child?
  • Which parent seems to have the best parenting skills?
  • Is there any domestic violence present, or likely to be present, in a child’s life (either themself or with another relative or intimate relationship to which the child would be regularly exposed)?
  • Is there any substance abuse present in either parent’s life (either themself or with another relative or intimate relationship to which the child would be regularly exposed)?
  • Which parent is more likely to raise a child in a “moral” environment (this can include the existence of any boyfriends or girlfriends, past criminal history, down to something as mundane as whether or not either parent drinks alcohol or smokes cigarettes)?

On what “evidence” does a judge rely upon to decide “custody” of a minor child?

Obviously, either party to a custody fight can testify, but judges usually look for corroboration.  Sometimes, this can be the testimony of a child, although judges will NOT generally want to listen to a child under age ten (10) testify.  Often, family members and friends of either parent will testify, but a judge will typically listen carefully to such testimony for the natural “bias” of such witnesses.  The best witnesses are “unbiased” witnesses, such as police officers, teachers, therapists, day care workers, and the like; and, the “best” evidence is something that a judge can direclty  “look” at or “hear”, i.e., a statement/admission by the other parent, an e-mail, an audiotape (like a 911 call), a videotape, or pictures of injuries or property damage.

Who can be a “witness”?

Anybody can be subpoenaed to come to court as a witness.  However, there is a common misconception that a witness has to directly see and hear an event.  Rather, a “witness” can be someone to whom a statement was made, it could be someone who overheard something, or it could even just be a confidante (like a best friend or even a sibling or parent) about an event.  A competent trial attorney will ALWAYS want to know about every such witness, as broadly defined, from his/her client and the attorney will decide who helps or hurts the client’s case.

How does the age of a child affect custody rights?

Children are generally not permitted to express which parent they want to live with, as the court system discourages putting the children in the middle of a custody fight.  Obviously, as indicated above, children older than eleven (11) are permitted, by law, to exercise the right to speak their minds.  A judge might be willing to listen to a younger child, but probably not younger than eight (8) or nine (9).  This can create problems in a custody fight, in that a parent may want to testify about what the parent’s child has told them, but the court won’t permit them to do so, since this is inadmissible “hearsay,” unless the judge has also agreed (or is required) to listen to the child’s testimony.

George also has something called a “minor election.”  In Georgia,  when a child turns fourteen (14 ), the child has a presumptive right to declare with which parent he/she wishes to primarily live.  A judge may overrule this choice based on the general standard for custody decisions, e.g., “best interests of the child.”

Children are generally not permitted to express which parent they want to live with, as the court system discourage putting the children in the middle of a custody fight.  Obviously, as indicated above, children older than eleven (11) are permitted, by law, to exercise the right to speak their minds.  A judge might be willing to listen to a younger child, but probably not younger than ten (10).  This can create problems in a custody fight, in that a parent may want to testify about what the child has told them, but the court won’t permit them to do so; this is inadmissible “hearsay,” unless the judge has also agreed (or is required) to listen to the child’s testimony.

How do I go about changing our custody situation?

The parties are not limited by how often they may seek a change of custody or visitation.  But, the rules are much stricter about what constitutes the type of facts permitting the judge to grant the request for the change.  The legal standard is a “material change of circumstances” adversely affecting the welfare of the child.   

Can the custody of a child ever change?

The parties are not limited by how often they may seek a change of custody or visitation.  But, the rules are much stricter about what constitutes the type of facts permitting the judge to grant the request for the change.  The legal standard is a “material change of circumstances” affecting the welfare of the child.  

For instance, if either parent moves out-of-state, that might be a reason to justify a change in custody, or at least modifying the visitation schedule.  However, BOTH parents have a constitutional right to move, so NEITHER parent can legally limit that right.

The custodial parent being arrested or moving the child into a home occupied by a criminal, might be enough reason to justify a change.  

There is not, however, any hard and fast rule and each case must be carefully evaluated on its specific facts.

Divorce FAQ

What happens when you file for divorce or legal separation?

  • The only significant difference between a divorce and a legal separation is that a divorce is final and a legal separation can only last for twelve (12) months, unless it is converted into a divorce.  Otherwise, you would not notice a difference.
  • The first step is something called a “temporary hearing.”  The issues at a temporary hearing (whether for divorce or just separation) will mimic many of the final issues in a divorce, e.g., custody and child support (if there are children), alimony, division of property, who lives in and pays for the marital residence, division of debts, cars, . . ., etc.  However, none of this is permanent, thus, issues like retirement are not addressed and the main idea is to maintain the “status quo” and prevent the marital assets (and debts) from being depleted.

What are the main issues which come up in a divorce action?

In a divorce action with children, the case is divided up into two (2) phases.  First, a judge ALWAYS decides custody matters BEFORE the other issues are considered; financial issues, including: child support; alimony (if any); who gets which car; who gets the house; and, “equitable” division of retirement, other assets, and debts, . . ., etc.., which MAY be decided by a jury, if either side insists on a jury trial. 

Can one parent leave and take a child away from the other parent in a divorce?

This is very unlikely to happen.  Judges usually award the parents joint legal custody, even if one parent will have more time with a child as the “primary physical custodian.”  Only in instances of extreme abuse and/or pathetically poor parenting skills might this happen

What are the legal issues when “custody” of the minor child(ren) decided?

Whether it is a divorce action or just a straight custody one, the main issue is the same, i.e., what is in the “best interests” of the minor child(ren)?  If there has NOT been a prior LEGAL determination of custody, the biological parents start out with equal rights and on an equal legal footing – neither the mother nor the father starts out with an advantage, or disadvantage, with respect to custody decisions, despite what people may generally believe.  This is even true in legitimation cases, where a biological father sues to establish his rights to a child born out-of-wedlock.  Hence, mothers need to be careful not to assume that they will ALWAYS win custody battles and fathers need not be discouraged that they will USUALLY lose custody battles.  The final decision always comes down to which parent might be the best “caretaker” and what is best for the child(ren).

What happens at a temporary custody hearing?

  • The temporary custody hearing can be (but does not have to be) a separate hearing from the temporary hearing concerning property and alimony.  The judge at a temporary hearing decides temporary custody and child support issues.  Typically, the temporary hearing is the foundation for a final custody order although, depending on the time of year when the temporary custody hearing is held, the judge may or may not address summer and holiday visitation.
  • At a temporary hearing, a judge hears from the parties, up to one additional witness per party, and an unlimited number of affidavits.  The latter are often viewed with some skepticism, as the witnesses are not available for cross-examination.  Still, affidavits that describe specific facts or incidents and/or affidavits from an unbiased witness (doctor, teacher, police officer), can be very useful.

How is the property and debts going to be divided?

  • Property, both assets and debts, is either designated as “non-marital” property or “marital” property.  “Property” can either be an asset (like a house) or a debt (like the mortgage on the house).
  • As opposed to child support, there is no “formula” for the division of marital property.  The division of marital property is based on the fair market value at the time of the divorce and is done based on what a judge or jury determines is “fair” or equitable.  But, there is no “formula,” letting a judge or jury decide how to divide the assets and debts is very risky – that is why most of the time, the parties settle without going to court.  Sometimes, as with a house, one party may get possession and ownership of the house, but the other party gets paid some money for giving up his/her right to possession and ownership.

What about retirement money?

Other than a home, retirement (if any exists) is the next biggest asset in most marriages.  Retirement can be considered a “marital” asset, depending on the length of the marriage and when the retirement benefits were built up.  There are special rules on how to transfer retirement money, and not every case involves such a transfer. 

Can I be made to take on all of the marital debts?

  • “Non-marital” property is an asset or debt acquired before a marriage and is not included in the division of property, except in very unique circumstances. Inheritances, stocks, family gifts or heirlooms, wedding presents, and trust accounts, are typical examples of this type of property.  Since non-marital property is not subject to equitable division between the parties, the non-marital property goes back to that spouse who originally owned it, without any compensation to the other spouse.
  • Marital” property is an asset or debt that is acquired during the marriage.  The fact that an asset or debt is in one spouse’s name does not been that the asset belongs exclusively to that spouse.  Thus, if you live in a home, acquired during the marriage, but the home is in your spouse’s name only, your home is still going to be classified as “marital” property.  Of course, generally speaking, an asset or debt like a car/truck or credit card that is only in your name generally will go you (good or bad) in the divorce.  
  • “Joint” debt is where you and your spouse have debts in both of your names, such as credit card bills, a car/truck loan, or mortgage.  This type of debt will have to be split, usually based on how assets are being split and/or the parties’ respective income.

Can you explain alimony?

  • In some cases a judge may award alimony to a spouse.  This may just be temporary pending the outcome of the trial or in the final divorce order.  A judge or jury will award alimony depending on the circumstances of the marriage, such as (this is the “short” list): the length of the marriage; the respective earning capacities of the parties; a spouse’s needs; educational level; and the ability of a spouse to pay to alimony.  Alimony even on a temporary basis, is not always awarded and, generally, only where there is a great disparity in income or earning potential.
  • The purpose of alimony is to prevent the more dependent spouse from suffering a significant loss in his/her standard of living.  Even what it is awarded, it is generally only for a relatively short period of time and for marriages of less than five (5) years, probably not awarded at all on a permanent basis.  If there is a long term marriage, such as in excess of twenty (20) years, where children were raised and one of the spouses did not work to do so, the dependent spouse might very well expect, and receive, alimony payments for an equivalent length of time.

Ok, I have a grasp of what the future holds, now how can I expect my case to progress if I file a complaint or have had one filed against me?

After a complaint is filed, the other party will respond with an Answer, approximately thirty (30) days after the defendant is “served” with the complaint.  The answer will determine which factors are being disputed and any counterclaims that are going to be at issue.  If you have a truly, uncontested divorce (meaning the parties have agreed upon all terms), then you will be able to propose a joint settlement agreement for the court’s final approval.  Otherwise, you will be going to court.

Going to Court ...

  • TEMPORARY HEARING/RULE NISI HEARING- 
    This is your first actual court time in the process of your case.  The Judge (there is NO right to a jury trial at a temporary hearing) can make temporary decisions pending either a resolution between the parties or a final order by the court.  During this time the parties may enter into a temporary agreement or if the parties cannot agree, after hearing evidence, the Judge may issue a Temporary Order.

  • DISCOVERY       
    Following the temporary hearing, the Discovery period is designed so that both parties can obtain as much information to aid their case as possible.  This includes answering general questions, providing financial documentation and other relevant information that may be requested by either party.  Each side can ask written questions of the other side that have to be answered under oath.  In most cases, but not all, we will send out written discovery questions to the other side.

  • DEPOSITIONS           
    Either side can also schedule depositions.  These are opportunities for both parties’ attorney to questions all witnesses and parties under oath about what they might testify; this is a powerful device as the attorney can learn exactly what the witnesses will say, in advance of trial, and try to come up with a strategy that either takes advantage of the sworn testimony or to counteract it.  If you can afford to have the attorney take depositions, and your case is going to be strongly contested, you should consider authorizing your attorney to do so.  However, as useful as they are, taking depositions is rather expensive and you should authorize your attorney to take depositions only if it is absolutely necessary to do so and if you can afford to pay for them; many cases do to trial without depositions having been taken.

  • Mediation
    When the Discovery period is over (or even before), the case could go in many different directions (keep in mind that one party is always at liberty to offer a settlement at any point in the process).  Mediation may be required before your case can go to trial.  A Mediation is a meeting between the two parties with a mediator to attempt to resolve the case before trial.  If the Court does not require a Mediation, the case is set for Trial based on the Court’s schedule – it can take as long as a year from the completion of the discovery, before your case would go to trial.  

  • Trial
    If the parties cannot agree, they may move forward with a jury trial or a bench trial (where only the Judge presides).  Both parties must agree to waive their rights to a jury trial.  Please keep in mind, that while a jury may determine the final outcome for a divorce, it cannot determine child custody and/or support issues which are left solely to the discretion of the court.

  • Families in Transition Seminar
    If there are any children involved in your litigation, both parties are required to complete a “Families in Transition Seminar,” before a final order will be signed by the Judge.  If you don’t have the information on where to attend, please ask the staff.

What powers will I have in the settlement of this action?

Your power: If the parties can agree on all of the terms, then a settlement agreement can be issued and once reviewed by a Judge of competent jurisdiction, and a final divorce decree will be ordered.  If the parties cannot agree, then the parties will turn to the court for disposition.  It is important to be absolutely certain in any decisions made in a proposed settlement agreement, as it is legally binding.

This is your case.  I will provide you with advice and consultation, but you have the power to make many important decisions about your case.  Despite the power that you have, you will probably find that your result will be best, if you listen carefully to my advice and consultation.

Civil Rights FAQ

What are the types of civil rights cases that the Rockefeller Law Center handles?

The Rockefeller Law Center has helped clients vindicate their federal civil rights (or suing a governmental worker or entity for state violations) entity in a wide range of instances such as claims of excessive force, wrongful arrest, deficient medical care, and premises liability.  The Rockefeller Law Center has purposed such cases in State and Federal courts throughout the Southeastern United States.

When can I sue the government or a governmental employee because of personal injury or violation of my civil rights?

All levels of governmental entities and their employees or actors are protected by something called “sovereign immunity.”  This means that they are “immune” from (or cannot be) sued, EXCEPT in limited arguments (like a breach of contract claim).  There are exceptions where the governmental entity has “waived” its immunity for causing personal injury or violation of your rights if you comply with certain notice provisions.  

Georgia has a “Georgia Tort Claims Act,” defining the rights and the process for suing the State of Georgia and the United States of America has a “Federal Tort Claims Act” which serves the same purposes.  When you have a claim against the State of Georgia or the United States of America, these Tort Claims Acts allow you to sue as if the State or Federal governments were private entities for simple acts of negligence.  These two (2) statutes offer some the easiest method for avoiding the bar of immunity to a suit when injured by the acts of a governmental employee or actor.

However, county, city entities and other local entities (like school boards) are not covered by Georgia’s Tort Claims Act, and are sued directly generally only for having a wrongful policy or custom.  This makes suing them almost impossible.  EXCEPT in motor vehicle wrecks, if there is insurance (which acts as a waiver of immunity up to the limits of the insurance policy), you can sue the entity if you comply with the notice requirements.  These automobile wreck lawsuits have a fairly high chance for success – so, get your notice requirements taken care of promptly!

Suing a governmental actor is different.  First, you can NOT sue a governmental actor through a tort claims act, as described above.  Similarly, you do NOT sue the actual operator of a governmental motor vehicle.  In all of these instances, you are ONLY suing either the State of Georgia or United States of America.

Second, a state governmental actor is going to be protected by a form of immunity called “official immunity” (which makes it hard, but not impossible to sue in state courts) EXCEPT for civil rights violations.  The federal governmental actor enjoys the protection of sovereign immunity EXCEPT for something called a “Bivens” action, which is similar to suing for a civil rights violation.  There are not any “notice” requirements for these types of lawsuits.

There are also specific employment rights guaranteed by several federal and state statutes.  This involves completely separate analysis and is not being discussed or analyzed herein.  You CAN, however, sue for a “civil rights” violation in an employment context, it just has to involve a constitutional violation.

How do I decide if I can sue in a Federal or State Court?

The answer this can depend on what type of claim is raised.  42 U.S.C. §1983 is the federal statute which lets a citizen sue in either of Federal or State courts for a violation of a constitutional right or right guaranteed by Federal law.  When we think of a “civil rights” violation, this is the statute we are technically describing.  There is no pre-suit notice that has to be given for a civil rights lawsuit.

A “Federal Torts Claim Act” lawsuit can only be brought in a Federal District Court.  It has several unique characteristics.  One, you must make file a properly executed and timely pre-suit claim with the department of the federal government responsible for your injury.  Two, you can only recover up to the amount of this pre-suit claim.  Third, there is not right to a jury trial in a FTCA lawsuit, as only the district court judge decides if your rights were violated and, if so, the amount of the award.

The State of Georgia cannot be sued itself in Federal Court; you CAN sue the individual employee in Federal Court for a civil rights violation.  This is a different type of sovereign immunity.  So, the only way to sue the actual State of Georgia is in a state court, pursuant to the “Georgia Tort Claims Act.”  To do so, you must make a properly executed and timely pre-suit claim with the department of the state government responsible for your injury AND the risk management agency handling claims against the State.  

A “Federal Torts Claim Act” lawsuit can only be brought in a Federal District Court.  It has several unique characteristics.  One, you must make a properly executed and timely pre-suit claim with the department of the federal government responsible for your injury.  Two, you can only recover up to the amount of this pre-suit claim.  Third, there is not right to a jury trial in a FTCA lawsuit, as only the district court judge decides if your rights were violated and, if so, the amount of the award.

When you are talking about a local governmental entity, such as a county, city, or school board, you can certainly sue in Federal Court for a civil rights violation (which is in contrast to the State of Georgia itself).  And, you can sue the entity in State Courts, if you make a properly executed and timely pre-suit claim with the local government.  If suing the entity, unless you are suing for a motor vehicle wreck, the entity can generally only be sued for a wrongful policy or custom.

Finally, the local governmental employee or actor can be sued directly in both State and Federal Court.  There is no notice requirement to do so.

What are the main concerns in suing a government or governmental actor or employee?

As with other sorts of civil litigation, there are two (2) components to suing the government or its employee or actor.  First, liability must be determined.  This answers the question whether or not the defendant engaged in any wrongful conduct.  Second, damages must be assessed.  This determines how much money should be paid to the plaintiff because of a defendant’s wrongful conduct.  (You may want to review the FAQs on “personal injury cases” which does an excellent job of explaining these general issues and can answer your general questions.)

However, one of the differences in civil rights (42 U.S.C. §1983) cases is that it more common to be concerned with curbing future behavior.  Thus, if the entity is being sued, it is likely that one of the goals of a civil rights’ plaintiff is to have a “consent” decree agreed to and/or to seek an “injunction” against the complained of activities.  This means that attorney’s fees can be an important part of the claim, which is in contrast to other types of lawsuits.

What types of specific immunities are available to the government or its employee or actor in Federal Court?

There are three (3) different types of immunity.  Federally, pursuant to case law interpreting 42 U.S.C. §1983, there are two (2) judicially created defenses called “absolute” and “qualified” immunities.  Both of these concepts mean what they say (“absolute” means you cannot sue, “qualified” means you might be able to sue) and are available to individual governmental employees or actors, as opposed to a governmental entity.  Finally, there is something called “sovereign” immunity, which is enshrined in the 11th Amendment of the United States Constitution.  This is available only to States, which cannot be sued in Federal Court without their permission for money damages.

“Absolute” immunity is absolute or complete and you cannot sue an actor protected by this form of immunity.  Examples of governmental actors protected by this form of immunity include judges, prosecutors, and legislators, when this actor is acting in conjunction with their job.  This list is very limited.

“Sovereign” immunity is also absolute.  What it says, essentially, is that the sovereign states are not subject to lawsuits for money damages in Federal Courts.  So, typically, you cannot sue State “entities” in Federal Courts for money damages for violations of 42 U.S.C. § 1983.  While this is true, you can still, generally, sue an individual state actor, unless the actor is considered to have the same protected legal status as the state.  Also, you can still sue a State entity to curb unconstitutional policies, such as the school desegregation lawsuits, just not for money damages.

“Qualified” immunity is a conditional form of immunity; most of the litigation we see involves qualified immunity.  It involves a two (2) step process.  A plaintiff, first, has to show that there was a violation of a “clearly established” constitutional right.  For instance, it is “clearly established” that a law enforcement cannot use excessive force during an arrest, as set forth by the protection of the 4th and 14th Amendments of the United States Constitution (similarly, the 8th Amendment protects against excessive force used in the prison environment).  There is quite a bit of litigation on what is a “clearly established” right and what is not.  

Assuming the plaintiff successfully shows a clearly established right was violated, the defendant actor shifts the analysis to demonstrate that he/she acted “objectively reasonable,” as judged by the standard of an “objectively reasonable” actor.  Thus, the “intent” of the official is generally irrelevant (such as in situations where there is an allegation that the official acted out of a discriminatory intent).  There is also quite a bit of litigation on whether or not the actions of the defendant actor met these standards.

Can I sue a governmental entity for a civil rights violation in Federal Court and seek money damages?

Maybe.  In part, the answer depends on whether or not you are seeking to sue a Federal entity or a State entity.  

If you are trying to sue the Federal government, you are limited to suing only for an injunction or to reverse an illegal policy, since you cannot sue the Federal government for money damages, UNLESS there is a specific law granting the right to sue for money damages (such as the Federal Tort Claims Act).

With State entities, it is trickier since the entity may be protected by sovereign immunity – it all depends on how State law defines the entity.  The State of Georgia is a definite “No”; counties, cities, and entities like school boards, you may be able to do so.  State prisons, the Georgia Bureau of Investigations, the Department of Transportation, the Attorney General’s Office . . ., etc. – these are all examples of departments of the State of Georgia and are not subject to suit in Federal Court for money damages.  Also, if you sue the State of Georgia in State Court (alleging Federal violations), then the State can have the case removed to Federal Court.  However, if the State of Georgia does this, it may lose its sovereign immunity protection because the State is deemed to have voluntarily subjected itself to the jurisdiction of the Federal Court.

If you have a viable civil rights action for money damages in Federal Court, this is sometimes called a “Monell” action, after the name of the case authorizing such lawsuits.  However, as discussed above, you are only suing the entity for an unlawful policy or custom (which also needs to be a moving force behind the civil rights’ violation).  This is a very, very difficult claim to successfully prove.

How do I sue one of these Georgia entities in Federal Court for a civil rights violation with this “Monell” claim?

An entity is sued through its customs, policies, or procedures and/or through the actions (or inactions) of a “final policy-making official.”  Thus, you first have to define the unconstitutional custom, policy, or procedure and/or the unconstitutional actions of the final policy-making official. If you are suing a municipality, you sue it through its final policy-making official (generally the mayor or, in some jurisdictions a “city manager); if you are suing a county, you sue through the chairperson of the county board of commissioners (you sometimes also name the whole board).  

In addition to naming the final policy-making official, there may be another individual named as a department’s policy-making official, whose decisions are deemed to be those of the entity.  For instance, if you are suing a municipality for police brutality, you might name the Police Chief, as a policy-making official for the police department, because of his/her individual decisions or decision to adopt an unconstitutional custom, policy, or procedure.  

However, you have to careful about suing a County for the actions of its Sheriff’s Department, as sometimes the Sheriff is considered to be a State actor and sometimes not.  It depends on the reason you are suing the County – where the Sheriff is considered the State, you cannot even sue the County for the Sheriff’s Departments alleged unconstitutional custom, policy, or procedure, since the Sheriff IS the final policy-making official for the County (there is no one above the Sheriff) and, if he/she is “the State,” the Sheriff is immune from suit (as is, therefore, the County).  Of course, if there were also individual deputies (not the actual Sheriff) who engaged in unconstitutional actions, the individual deputies can still be sued, even if the Sheriff and the County cannot.

Can I sue a private actor for violating my civil rights?

Yes.  This issue really does not come up under State law, since there are state laws permitting the suing of a private individual (or entity) for various types of injuries, but it is an issue that is more and more prominently featured in Federal lawsuits under 42 U.S.C. § 1983.

Traditionally, if a private individual (or entity) uses the machine of government to accomplish an illegal goal, the private individual (or entity) can be sued for a civil rights violation.  For example, if an apartment complex hires a police officer to provide security in an apartment complex, and the officer negligently investigates the report of a rape; the victim could claim a constitutional right to have the report investigated.  The officer will probably be protected by “qualified” and “official” immunities, but the apartment manager and/or owner could both be liable for negligently not having a policy requiring the officer to take specific actions in response to a claim of rape.  You should note that, if the officer was acting “on the job” the government entity would have to have an unconstitutional policy, not merely a negligent one.

But, the reason there is an increase of civil rights lawsuits against a private individual (or entity) is very simple – “privatization” or the tendency to pass on traditionally governmental responsibilities to private actors.  For example, county jails have a state-imposed responsibility to provide medical care to their inmates, while the constitutional imposition is only the requirement of some medical care.  However, many county jails hire a private company (or individuals) to provide this state-imposed medical care for inmates.  Thus, the responsibility of the county to do so is passed on to the company and, if that company (or individuals) adopts policies meting out medical care in very minimal degrees, an inmate harmed by that policy can sue for negligence in the adoption of such parsimonious policies, in violation of the inmate’s civil rights. On the other hand, the county probably could not be sued for hiring this private company and DEFINITELY could not be sued just for just having a “negligent” policy, either adopted by the county or by the private company.

Why are these Federal immunity rules so important; why can’t I just sue anyway?

The reason these rules of immunity are so important is because of a legal procedural rule called “summary judgment.”  A party to a lawsuit, can seek “summary judgment” on any issue and, in civil rights cases, government (individual or entity) defendants file for one to frustrate a plaintiff seeking justice for a wrong.  When the government defendant files for summary judgment, the judge is asked to consider the various immunity issues and decide if the plaintiff can continue with civil rights lawsuit.  If the judge grants the government defendant’s request for summary judgment, the lawsuit comes to a screeching halt and the plaintiff either has to go through an expensive, and often fruitless, appeal process or drop the lawsuit – without ever getting to present the case to a jury!

This is particularly frustrating where the judge is considering whether or not a “right” is “clearly established.”  In deciding this issue, the judge looks to see if there has been a nearly exact prior court ruling or specific statute outlawing the complained of activities.  Where there is no such exact ruling and specific statute, the judge might find the complained of activities to be reprehensible, but the government defendant receives a “free” pass, because of the lack of prior clarity that specific actions would be a violation of a citizen’s rights.  Henceforth, there would be such a ruling, but not for the suing plaintiff left with no remedy for the, now, admitted violation of his/her constitutional rights.  

The quirks of this analysis might be illustrated by the argument that while shooting into the passenger compartment of a moving vehicle might be “clearly established” as unconstitutional, merely shooting AT the vehicle might not be.

Can I sue a Georgia government entity for violating my rights in State Court?

Yes.  The Georgia Legislature has passed a law, partially waiving the immunity for the actions of government actors of the various entities of the State of Georgia, for lawsuits filed in Georgia courts, by the “Georgia Tort Claims Act” and/or by statutes specific to Counties and Municipalities.  This provides for a limited waiver of immunity for lawsuits against State and County entities – for municipalities there is a separate statute partially mirroring the GTCA – in certain narrow circumstances.  Generally speaking liability is waived for failure to act in accordance with a “ministerial” act, one which is a simple, mandatory action, required under a law or policy – such as the requirement to respond to a 911 call; but, NOT for failure to perform “discretionary” acts – such as when to make an arrest or how to respond to a 911 call.  

Liability for a State or County entity is also NOT waived, where the government actor commits an “intentional” tort, such as an assault or battery – as this is a part of the GTCA, this specific limitation is not applicable to Municipal entities.  Thus, if State or County actor negligently uses excessive force, in violation of a ministerial duty to only use reasonable force, the entity may be liable, but NOT if the actor intentionally caused injury.  Of course, in the latter circumstance, the individual actor would clearly have violated the injured citizen’s rights.

With respect to injury caused by the negligent operation of a motor vehicle, the waiver is fairly broad.  There is a separate narrowly specific statute, which requires State, County, or Municipal entities to purchase automobile liability insurance for acts of simple negligence of government actors from the operation of motor vehicles.  And, it provides for fairly high ceilings on the resulting liability – depending on when the cause of action accrues, this waiver for bodily injury damages is up to $100,000.00 (after January 1, 2005), up to $250,000.00 (after January 1, 2006) and up to $500,000.00 (after January 1, 2007).

Are there any specific rules for suing a Georgia government entity for violating my rights in State Court?

Yes.  In order to preserve the right to sue in state courts, you have to comply with strict “ante litem” or notice provisions; the State of Georgia and counties are entitled to twelve (12) months (municipalities receive six (6) months) advanced written notice of your intent to sue.  This has been done within the stated time period from the date of injury.  These statutes are very particular on who has to receive the notice (and how) in order to preserve your right to sue; you do NOT have to provide an individual actor with this notice, to preserve your right to sue the individual actor.  Because the law is so particular, this is something you will want to consult with an experienced attorney, before the requisite time runs out to provide  the ante litem notice.

Are there specific immunity rights protecting government actors from lawsuits filed in State Court, similar to those in federal civil rights cases?

Yes.  But, the relevant immunity is called “official” immunity.  The analysis often ends up with the same result, yet it is very different.  First, you generally can NOT sue an individual State of Georgia actor or employee; you are limited to those rights defined by the Georgia Tort Claims Act.  When you are talking about other categories of individual governmental actors, they are protected from suit, where he or she has “discretion” on how to act; there is no protection for failure to act in accordance with a “ministerial” (mandatory) act.

This distinction can be tricky.  In addition to the examples above, consider a claim for an illegally maintained roadway.  Where a governmental actor has discretion over how to build a road, or how to inspect a road, the actor is protected from suit by “official” immunity.  On the other hand, the failure to build a road according to accepted mandatory engineering practices, or the abject failure to inspect the safety of a road damaged by a flood, may not be protected by “official” immunity.  Again, because the law is so particular, this is something you will want to consult with an experienced attorney, before you proceed with a lawsuit or abandon the idea of one.

How do summary judgment issues affect my right to sue?

Because of how civil rights cases and claims against state entities and actors are decided, particularly in federal cases, it is common to lose cases at summary judgment.  Therefore, Plaintiff’s Attorneys have to be very cautious about taking on civil rights cases.  Generally speaking, Plaintiff’s Attorneys look for cases where the case law appears to be clearly established AND there are catastrophic, or near-catastrophic, injuries.  For this reason, other than where a non-profit organization, like the American Civil Liberties Union or Southern Poverty Law Center, is willing to take on the case, only a plaintiff with monetary resources can afford an attorney to sue over an “insult” injury, like school prayer cases.

Is the summary judgment analysis the same for a state civil rights lawsuit?

No.  While it is sometimes tricky to distinguish between discretionary acts and ministerial acts, with state law civil rights analysis you do not have the absurd result suggested by the federal analysis, i.e., that a wrong might be found to have been committed without a remedy.  This is because there is technically no requirement that a ministerial obligation be “clearly established.”  However, the same principle applies, e.g., if you cannot defeat the state immunity defenses at summary judgment, the case dissolves before your claim gets to a jury.

Criminal Defense FAQ

What are the types of criminal law cases that the Rockefeller Law Center handles?

The attorneys of the Rockefeller Law Center have extensive experience in all areas of criminal law, Federal and State courts around the Southeastern United States, in appellate and trial courts.  They have handled cases from simple thefts to murders, robberies, child molestations, all types of drug cases, including conspiracy and racketeering cases.

What does the term “Warrantless Arrests” mean?

A law enforcement officer (certified with arrest powers) has the authority, in certain cases, to arrest a person, without a warrant, for committing a crime in the officer’s immediate presence (if a non-felony, non-domestic violence cases), or a felony or domestic violence offense for which probable cause exists for the officer to believe the crime has been committed.  If a law enforcement officer makes a warrantless arrest, the officer has forty-eight (48) hours to obtain a warrant or the person arrest MUST be released from jail.

What does “Arrest Pursuant to an Arrest Warrant” mean?

Either a law enforcement officer or a private citizen can swear out a warrant before a Magistrate (or a Superior Court Judge, in state courts); in Federal Courts only a law enforcement officer may obtain an arrest warrant (or an Information) from a United States Magistrate or District Court Judge.  This is generally done through a formal written application process, where the applicant (called the “affiant”) swears under oath that the facts contained in the application are true.  The Magistrate (or Judge) reviews this application to determine if there is probable cause to believe a crime has been committed.  If the warrant is granted, any law enforcement officer (certified with arrest powers) can be empowered to arrest the person charged in the arrest warrant (by entering the arrest warrant in criminal justice computers).  Once the arrest is made, the person arrested must be brought before a Magistrate within seventy-two (72) hours for a “first appearance,” at which time the Magistrate informs the arrested person of the charges and considers bond (if there was not a bond put on the warrant at the time it was granted).

What is the difference between Misdemeanor and Felony?

This distinction is very simple.  A “misdemeanor” is any offense that is punishable by no more than twelve (12) months in jail.  A “felony” is any other offense that is, potentially, punishable by more than one (1) year in prison.  There are often different procedural, discovery, and trial rules that apply, with somewhat lesser rights existing for a defendant charged with a misdemeanor.  However, the basic constitutional rights are the same regardless of the seriousness of the charge.

What are the Miranda Rights?

This is a rule derived from a United States Supreme Court case that is nearly fifty (50) years old, that was recently reaffirmed.  It is a rule that applies where the police have someone in “custody” (which can be less than a formal arrest), whom they wish to interrogate; if a suspect voluntarily invites law enforcement into his or her house or business and/or voluntarily goes down to the police station, the suspect is probably NOT considered in “custody.”  

Before a suspect in custody is questioned, he or she has to be told of the 5th Amendment rights concerning the right to remain silent and the right to consult with an attorney, and the suspect must affirmatively waive these rights.  If the suspect waives these rights, then he or she may provide law enforcement, even in innocent responses, with incriminating evidence that could otherwise not be compelled; hence, it is often better to consult with an attorney before agreeing to talk to law enforcement.  If the suspect does NOT waive these rights, law enforcement must IMMEDIATELY cease any attempts at interrogation. A person who does not waive these rights, and is questioned (with or without reading the “Miranda” rights), any statements or evidence that flow from this illegal questioning is inadmissible in court.

It is NOT a violation of an arrestee’s rights to fail to read him/her the “Miranda” rights at the time of the arrest; it is only a violation of these rights if law enforcement intends to question the arrestee.

What are Special Presentment Bench Warrants?

A “special presentment bench warrant” is where a District Attorney obtains a warrant by taking charges directly to a Grand Jury for Indictment, without an initial arrest on the specific charge.  Although not always, the special presentment bench warrant is generally a new charge added after a defendant has already been arrested from the same incident.  A charge is added when the District Attorney determines that law enforcement officer (or Magistrate) did not consider all possible charges arising from an incident.  A special presentment warrant will result in a defendant being arrested, or rearrested, as if there had been no prior arrests made concerning a specific incident.  A special presentment bench warrant is signed only by a Superior Court Judge and a person arrested pursuant to one is ineligible to have bond considered at his or her “first appearance.”

Can you explain Bond or Bail?

“Bond” or “Bail” are a judge’s order that permits a person to secure their release from jail, pending the resolution of his or her case.  It is a “promise to appear” which, if the person does not appear as promised, bond is “revoked.”  Bond can require the posting of money or property as a condition of release or it can be in the form of a “recognizance bond,” where a person merely needs to sign a promise to appear and no money or property is required to be posted.  On the other hand, if bond requires the posting of money (or property), the whole amount can be posted or a “bondsperson” can be hired.  If the entire amount of the bond is paid (either in cash or property), at the end of the case everything posted is returned; however, if a bondsperson is hired for the full bond amount, the “fee” paid to the bondsperson is a percentage of the full bond, but it is never returned.  Any person can post bond for an arrested person, but real estate can only be used to post bond in the same county of arrest and only to the extent there is proof of sufficient equity in the real estate to cover the full bond amount.

What happens in a First Appearance?

After being arrested, the defendant is brought before a Magistrate within at least the first seventy-two (72) hours.  At that time, the defendant is notified of the charges and the Magistrate considers whether or not to grant bond, if the Magistrate has the authority to do so.  In some cases, the Magistrate cannot grant bond because the crime is too serious; in some cases, bond cannot be granted because the defendant is on probation or parole; in some cases, bond is set pursuant to a “schedule” before or after a Magistrate considers bond; in all cases, a person charged with a misdemeanor, who is not on probation or parole, must be granted bond.

What is a Preliminary Hearing?

A “preliminary hearing” is held after a “first appearance” hearing, within days or a couple of weeks of arrest, but before a defendant is formally charged by a Grand Jury.  It is where the Government has to show an independent magistrate there is “probable cause” to believe the defendant has been properly charged with a crime (or not and the defendant would be immediately released).  “Probable cause” is a very low standard, but it has to be proven by some sworn testimony; in considering “probable cause” the magistrate may rely on “hearsay” testimony, as the Government does not have to put on its full case.  However, the defendant’s attorney has the unique opportunity to cross-examine any witnesses, and also to call witnesses to rebut the Government’s evidence; thus, it is a very important procedural right for a defendant.

What is a Grand Jury?

The Grand Jury is a set of at least sixteen (16) jurors who sit for several months and deliberate on alleged crimes and/or investigations.  These grand jurors do not deliberate on whether a person is guilty or innocent, but rather act as an investigatory body for the District Attorney (or Assistant United States Attorney) – a “special grand jury” is called to investigate for specific purpose, which can include government oversight.  A Grand Jury has subpoena powers and the District Attorney or Assistant United States Attorney acts as the “legal advisor” to the jurors, providing legal advice for them and, generally, deciding what is presented to them for their consideration.

What is an Indictment?

An “Indictment” is the formal charging document in a criminal case (an “accusation” can also be used in State courts and, sometimes, a “citation” can be the charging document for misdemeanor offenses in certain courts).  The Grand Jury “deliberates” after the District Attorney (or Assistant United States Attorney) presents evidence and testimony.  The Grand Jury does not decide guilt or innocence, it merely determines whether or not there is “probable cause” (the same legal standard for the issuance of an arrest warrant) to believe that the charges in the Indictment are “true.”  If at least twelve (12) jurors believe that an Indictment is “true,” they declare it a “true bill,” if not, they declare it “no bill.”  Typically, most of a defendant’s procedural and trial rights are triggered by a Grand Jury’s decision to indict.

What is an Arraignment?

After a person is “indicted” by the Grand Jury, the next critical stage in the criminal process is the “Arraignment.”  At this time, a defendant enters a plea of either “guilty” or “not guilty.”  Because this is such an important stage, and certain significant rights flow directly from a defendant’s arraignment, it is extremely important to make sure that you have, and are satisfied with, an attorney prior to being arraigned.

What is Plea Bargaining?

At any point in time, a defendant can enter into a “joint recommendation” with the Government.  This can involve a reduction in the amount and/or seriousness of the charges and/or a “joint sentencing recommendation.”  If such an agreement is reached, it is not binding on the parties until it is presented to and accepted by a judge; if it is presented and REJECTED by a judge, the defendant is provided the opportunity to withdraw his/her guilty plea.  Probably more than 99.00% of all criminal cases are resolved by this plea bargaining process (or the charges are just outright dismissed by the Government); hence, very, very few cases actually go to trial.

How does an Appeal work?

This is a right to raise with an “appellate” court, either a procedural or legal error committed prior to trial, a problem with the evidence and/or arrest, or a legal error made during a trial.  All people convicted of a crime have the right to an initial appeal; and, the right to free representation on that appeal, if they cannot afford to hire a private attorney.  Probably close to 95% of all appeals are denied; an appeal is not an opportunity to “re-try” a case that was lost after a jury or bench trial.

DUI FAQ

What is the legal blood-alcohol (BAC) limit in Georgia?

For an adult (over 21) not operating under a Commercial Driver’s License (CDL), the legal blood-alcohol (BAC) limit is 0.08.  This is the equivalent of only about four (4) 8 oz. glasses of beer, or two (2) to three (3) glasses of wine or mixed drinks.

Is it possible to be charged with DUI without having my blood-alcohol (BAC) limit above 0.08 or 0.02 (minors)?

Yes.  Georgia has a provision for which one can also be found guilty of DUI for being "less safe to drive." A finding of "less safe to drive" could be based on evidence such as an erratic driving pattern, being responsible for a wreck, being obviously drunk, or refusing to take a blood-alcohol test. Generally speaking, however, if you are over 21, and your BAC is less than 0.08, the prosecuting attorney will probably be willing to work with the individual (or his attorney) to have the charge reduced.

What are the ways that a blood-alcohol (BAC) limit can be tested?

The mechanism for requesting a chemical test of a bodily fluid is called “Implied Consent.”  This is a statutory scheme where the right to drive and possess a driver’s license is linked to the promise one makes that he or she will submit a bodily fluid for testing, if asked by a law enforcement officer.  The officer must possess “probable cause” to suspect and individual to be driving under the influence of some substance.  Implied consent is read to the charged individual after he is placed under arrest.  The officer will inform the individual that he will be asked to submit a breath, blood, or urine sample for analysis, at the discretion of the officer. Sometimes, the officer will actually request to collect more than one (1) type of sample.
 
If the individual charged agrees, he has a right to have the blood tested, at his expense (most people miss this).  If the individual refuses, however, he or she will be subject to having his license suspended for 12 months.

In a traffic stop, the BAC may or may not be measured on the side of the road with a hand-held device called an “AlcoSensor.”  This result is not admissible and just a tool to assist in the verification process that alcohol has been consumed.
 
After the roadside check (and possibly being asked to perform field sobriety tests), one will probably be asked to submit a breath, blood, or urine sample by the arresting officer.  If asked to submit to a breath test, one would be asked to blow into an instrument called an “Intoxilyzer,” which would measure the BAC.  In Georgia, if within three hours of driving the charged individual blows into the Intoxilyzer and a jury determines the BAC results are above 0.08, the individual probably will be found guilty.

Is a Driving Under the Influence (DUI) charge a felony?

Yes and no.  A simple DUI charge, with no prior DUI convictions in the past 10 years, is only a misdemeanor and treated as a “first” DUI for all penalties. However, any more than three DUI convictions are considered felonies. Also, DUI involving a death or serious bodily injury can be designated as a felony, even if a first offense.

For a second offence within 5 years, one could face more expansive jail time, probation, community service, ignition interlock device, and tag relinquishment, but it is still not a felony. If there is a third DUI within 5 years of the first, then one is still not guilty of a felony, but subject to stiff fines and jail time. If one is convicted of a fourth DUI within 5 years of the first, then he or she will be guilty of a felony and face between one and five years in prison, in addition to a fine of up to $5,000.

How can a DUI conviction affect me?

Being convicted for DUI can have wide ranging effects on your life, both personally and professionally. Not only does the financial strain of paying fines, lawyer’s fees, and reinstatement costs exist, but it also impacts the ability to obtain jobs or pursue professional endeavors. For example, sitting for any state's bar exam, nursing board, or insurance certification examination could potentially be jeopardized by a DUI conviction.
 
Unfortunately, there is no way to “soften” the blow of a DUI conviction that might be available for other types of crimes.  A plea of “nolo contendre” or “no contest” might be prudent in a civil context, if an individual is being sued for being DUI in causing a wreck, however, it is still a conviction under the law.  And, types of “avoidance” sentencing options, such as “first offender” or “conditional discharge” are not available for a person convicted of DUI.
 
Presumably, this is the ultimate reason to hire an attorney … to try and avoid a conviction for DUI!

What is the BAC limit for a Commercial Driver's License?

When one is actually operating a commercial vehicle, the legal blood alcohol level for DUI is lower than for when you are operating a non-commercial vehicle. In Georgia, a BAC higher than .04 is grounds for a DUI charge, as opposed to the 0.08 limit for non-commercial drivers. Many professional drivers think that by refusing a BAC test at the time of your DUI arrest, you can avoid the loss of your CDL license. However, in refusing to take any tests during or after a DUI arrest you automatically forfeit your CDL license for one year in most states.
 
There is a clear distinction, however, between merely having a CDL license while operating a non-commercial vehicle versus operating a commercial vehicle.  If one who possesses a commercial license is pulled over while operating a non-commercial vehicle, the BAC and related field test results are the same as if the driver was not a commercial license-holding individual.  Of course, if you lose your non-commercial privileges, you also lose your CDL privileges.  This puts the owners of a CDL license in a special class of suspects who almost always, need to hire an attorney if charged with DUI, even when the evidence is flimsy – the consequences of a conviction are potentially too severe to do otherwise!

Are DUI laws different for Drugs?

The term DUI means "driving under the influence." You can be found guilty of DUI alcohol for having an unlawful blood alcohol or for being under the influence to the extent it is “less safe” to operate a motor vehicle.  With drugs, there is no “automatic” quantifiable level that makes driving under the influence a crime, rather the State has to prove that the drugs (legal or illegal) made it “less safe” for you to drive.  

BE CAREFUL, it is not just illegal drugs that can cause you to be arrested for DUI, but being under the influence of prescribed drugs (even, in theory, over-the-counter drugs) can cause you to be legally arrested. However, the State still has to prove that whatever substance you were alleged to have consumed affected your ability to drive to the extent you were “less safe to drive,” which can often be very difficult to do.

Is there a different legal blood-alcohol (BAC) limit for minors (under 21)?

Yes. If you are under twenty-one (21), the legal BAC limit is only 0.02, which is the equivalent of just about a single drink.

What will happen to my license if I receive a DUI charge, and I am under 21, and convicted BEFORE I turn 21?

If you are over 21, generally speaking, you can either of obtain a work permit, hardship license, or have your license reinstated after a shorter than full suspension period of time.  The same is not true if you are convicted of DUI while under 21 (or even just having your license administratively suspended); there is no such thing as a “work permit,” if you are under 21.  The suspension is what is often called a “hard suspension.”  So, don’t get charged with DUI while under the age of 21!

What will happens to my license if I receive a DUI, while I am under 21, but not convicted until AFTER I turn 21?

Ah, this is an interesting issue.  What happens is that the DUI is treated, for license purposes, as if you were arrested after you turned 21 years old, and you can receive a work permit and your suspension could last as little as 120 days.  Another reason to hire an attorney!!!

What about my 5th Amendment rights?

First, under the 5th Amendment, you have the right to “remain silent.”  You can “assert” this and, further, if the officer starts questioning you AFTER you are taken into custody, the officer has to alert you to your 5th Amendment rights.  Unfortunately, most of the time, the officer is questioning you BEFORE you are taken into custody and, thus, does not have to warn you of your right to remain silent, before questioning you.  The same is true concerning any “Field Sobriety Tests” (FST) offered.  Before asking you to perform them, unless you were already placed “in custody,” the officer does NOT have to advise you of your 5th Amendment rights.

Your “silence” can NOT be used against you – same thing for any refusal to perform any of the “Field Sobriety Tests” (FST), which are strictly voluntary. In order to exercise your 5th Amendment rights, you can either remain completely silent or you can tell the officer that you wish to assert your constitutional right against self-incrimination.  Once you DO say or DO something, however, that CAN be used against you.   

Bottom line, if you are being investigated for DUI, just tell the officer you wish to exercise your 5th Amendment rights and say nothing else (but, see section on implied consent). result in a conviction.

Do I have to answer the officer's questions when he asks, "Have you been drinking?"

No, you do not have to answer the question. You have a 5th Amendment protection against self-incrimination and you have the right to "remain silent."  In order to assert this right, you may either remain completely silent and say nothing or tell the officer that you wish to use your 5th amendment rights against self-incrimination and then remain silent.

What happens if I don’t answer the officer's questions?

It depends.  You are within your rights to refuse to participate in the field sobriety tests and remain silent, under the 5th Amendment, but you must respectfully decline.  If you are disrespectful towards the officer, the way do it, the consequences may extend beyond a DUI charge.  For example, appearing unruly might, in and of itself, be evidence of DUI; and, if you are threatening, you can be charged with Obstruction, as a separate crime.  Furthermore, when you go to court, you want the officer say you were respectful – so do so!

How should I act when pulled over for a DUI?

Do not get out of the car unless the officer orders you to do so. The officer has the authority to order you to exit the vehicle, but getting out before he asks is unnecessary and potentially dangerous. It puts the officer on the defensive because he is does not know whether you are armed, about to flee, or just getting out to stretch.  Bad idea!
 
You must comply with any reasonable orders that the officer may give, such as to exit the vehicle. Failure to do so may result in more fines and charges and, again, create the possibility the officer will overreact. “Reasonable requests” does not include the FSTs or even the hand-held AlcoSensor – you may refuse, at your discretion, and as indicated in the discussion about your 5th Amendment rights, this refusal may not be used against you.

Do I have to complete a field sobriety test (FST)?

No. Under Georgia law, you cannot be forced to take a field sobriety test, nor can the refusal to perform one be used against you at trial. 

A field sobriety “test” is designed to test your coordination and balance; however, the “test” is full of different acts that would be difficult for even many sober people to complete.  In other words, they really don’t have much to do with measuring your ability to safely operate a motor vehicle.  Often, if you “fail” a test, the reason you did so may have some other causation (you are tired, you have a bum leg, your leg is asleep, you are excited, you are just confused) than what substance might, or might not, be affecting your ability to safely operate a motor vehicle.
 
These sobriety tests are really extremely subjective and each officer uses “clues” to gather more “proof” of the existence of a DUI; rarely, is the officer really using them to screen you to fairly determine if you are DUI or not.  Since the test is subjectively based on the opinions of each officer, the test can be manipulated to show what the officer wants it to show.  And, an improperly administered, explained, or understood FST can result in “bad” evidence which could

Can I choose to have my blood-alcohol (BAC) analyzed through a blood sample?

The officer chooses the sample that is requested for analysis and one cannot demand the officer choose a specific type of sample or method of testing.  Once the charged individual has complied with the officer's request, he has the right to request an immediate blood test, paid for at the expense of the driver; please note, if your request is not granted, your arrest can be voided.

What should I do when pulled over for a DUI?

I guess, the bottom line is that you do what is best for you.  This is a case-by-case decision.  In many cases, if you feel that you are definitely NOT DUI, you should cooperate fully, since you are more likely to be arrested if you fail to comply with the officer’s requests.  If you are uncertain, though, why hand the officer potentially damaging evidence that cannot be used against you?

What is the potential punishment for a DUI offense?

Conviction from a DUI offense can result in impressive fines, increased insurance rates, and can wreak havoc on a driver's license. The punishment for a DUI becomes more severe for multiple DUI violations within a five (5) year period (Habitual Violators).  For the 1st DUI offense (with no injuries), the maximum penalty is 12 months in jail and a fine of up to $1000.00; the fines escalate to $5,000.00 for a 3rd “misdemeanor” DUI conviction.  Even with a first DUI, there is a requirement of at least 24 hours in jail, which most courts will enforce.  So, hiring an attorney can make a BIG difference with jail time, probation, and keeping one’s driver’s license!!!

What is the potential punishment for a FELONY DUI offense?

If the DUI is alleged to have resulted in serious bodily injury (DUI – Serious Bodily Injury), or death (Vehicular Homicide) then the fines become even more severe. For example, Vehicular Homicide is when a person causes the death of another because they were DUI.  If convicted, one could be facing a sentence of imprisonment for “not less than three years no more than 15 years." O.C.G.A. 40-6-393.  DUI – Serious Bodily injury, as one may imagine, is when an individual is DUI and causes serious bodily injury to another person.  If convicted of this crime, one will “be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years" O.C.G.A. 40-6-394

What is going to happen to my license and can I get a work permit?

The effect on a license, if found guilty of DUI, varies. Circumstances to consider include previous convictions, damage caused, injuries incurred, etc. For example, if this is the first offense in the past five (5) years, the license may be suspended for a year, although, the judge may give a work permit, good for 120 days.  If a work permit is awarded, on the 121st date from the conviction, the convicted individual is eligible to have his license reinstated, barring the attendance and successful completion of an approved DUI class.  Therefore, for a 1st DUI, the effect on one’s ability to drive is fairly minimal.  On the 121st day, the work permit is no longer valid and driving privileges are suspended until the license is reinstated.  If reinstatement is applied for through email, there is a $200.00 fee that is required.  If done in person, the fee is $210.00 and addressed at the DDS offices.

What will happen to my license if I have a prior DUI conviction?

If charged with and convicted of a DUI fewer than 5 years prior, one’s license can be suspended for eighteen (18) months, with 120 days of “hard” suspension (no driving at all), and eight (8) months of qualified suspension (using an ignition-interlock device). Additional penalties can be put into place for individuals with multiple DUI convictions or habitual violators.
 
Depending on the situation, one might be able to apply for a "hardship" license. This option is not available under O.C.G.A. 40-5-58 if one has a prior conviction within 5 years and may be denied if one has a conviction within the last two years. In order to obtain a hardship license, one needs to file an application form with the DDS. No administrative hearing is required. If the applicant can show that the refusal to issue the permit would result in "extreme hardship" then the DDS must give the permit. "Extreme hardship” means that one cannot reasonably obtain other transportation, and therefore, the applicant would be prohibited from:  (1) Going to his or her place of employment or performing the normal duties of his or her occupation; (2) Receiving scheduled medical care or obtaining prescription drugs; (3) Attending a college or school at which he or she is regularly enrolled as a student; (4) Attending regularly scheduled sessions or meetings of support organizations for persons who have addiction or abuse problems related to alcohol or other drugs, which organizations are recognized by the commissioner; or (5) Attending under court order any driver education or improvement school or alcohol or drug program or course approved by the court which entered the judgment of conviction resulting in suspension of his or her driver’s license or by the commissioner. O.C.G.A. 40-5-64(c) (effective till Jan. 2013)

What is an ignition-interlock device?

An ignition-interlock device is a mechanism that detects if there is any alcohol on one’s breath (which begs the question about why you would have to use one, if your DUI priors were for something other than alcohol). The device is installed on a motor vehicle’s dashboard. Before the vehicle’s motor can be started, the driver must first exhale into the device. If the breath-alcohol concentration is greater than the programmed blood alcohol concentration, the device will prevent the engine from being started.

Does the administrative hearing determine whether I am guilty or innocent?

No. An administrative hearing has nothing to do with one’s guilt or innocence. This hearing strictly determines the status of your Georgia driving privileges.  The administrative judge will look at the evidence to determine whether suspension is warranted. Factors that the administrative judge might consider include:
  • Was there probable cause for the traffic stop?
  • Was there probable cause for the officer do arrest for DUI?
  • Did the arresting officer comply with the Implied Consent laws in requesting a bodily fluid sample?
  • Did the charged individual either refuse to submit the requested sample OR, if he submitted the sample, were there any other reasons that would lead the arresting officer to believe the individual was DUI (less safe to drive or otherwise)?
Your attorney will advise you, if you should insist on a hearing or if you should try to avoid one.  One possibility is that you would agree to plead guilty when your case went to court, in exchange for the officer agreeing to withdraw the affidavit of suspension.  Sometimes, just this, will be a good result for your attorney to obtain for you.

How long is the administrative driving suspension?

The suspension is twelve (12) months long. However, driving privileges can be suspended for a longer period of time, depending on the number of prior DUI convictions or the type of DUI to which one might plead or be found guilty.  
     
Technically, the suspension from a conviction is also “administrative,” in that the judge is bound by the terms of the law, and DDS determines the length of the suspension.  Thus, for example, if you plead guilty to a 1st DUI in 5 years, but you also plead guilty to two counts of Endangering a Child by DUI, for having your 2 children in the car with you while driving DUI, DDS will treat this as 3 DUI convictions in 5 years, for the purpose of your driving privileges.  So, be careful, and this is another reason to hire an attorney!
 
One option to reduce the impact of an administrative suspension is to ask the arresting officer to “withdraw” the affidavit for suspension, in exchange for your promise to plead guilty on the charges, when the case goes to court.  This is something your attorney can arrange for you, if it makes sense for you; it can be done even “after the fact” or if you missed your window to request an administrative hearing.

Can I fight my license being suspended?

Yes, until and if one is actually convicted.  Technically, the suspensions are not ordered by a judge (although, a judge would have the right to order more punitive driving restrictions than for what the law automatically provides), but they are a function of administrative law and entered by the Georgia Department of Driver Services (DDS) in Atlanta.  
 
The reality is that a license can be suspended for one (1) year or more by the mere arrest for DUI, if the arrested individual fails to properly request, in writing, an administrative hearing within ten (10) business days of the arrest for DUI. This written request must be sent to DDS, at which point a hearing may or may not be scheduled with an administrative law judge.  There are no exceptions made for driving to work, taking children to school, etc.  If you do not take the field sobriety tests or test above the legal limit, it is absolutely crucial that you file the request within the ten (10) days. A hearing will NOT be set, if the arresting officer decides not to send an affidavit to DDS requesting that your license be suspended because of the arrest.  Unfortunately, you won’t know this during the 10-day window to request the administrative hearing; this means you want to make your request, regardless.

Will I be able to receive a work permit if the judge decides to administratively suspend my driver's license?

This depends.  If the judge decides to administratively suspend a driver's license, based on a refusal to submit to DUI test, then one will be unable to receive a work permit and be ineligible for early reinstatement for one year.  If the judge suspends the license for any other purpose, one will be able to obtain a work permit after 30 days (but, be careful, as this also would take away 30 days of the 120-day period of a work permit, if convicted).  If your suspension is for anything other than a refusal, after 30 days, the individual can have his license reinstated, barring the successful completion of an approved DUI class.  BUT, be careful, as that certificate of completion has to be filed with the court within 12 months or it will expire and you will have to attend again, if you need to use the certificate to have your driving privileges reinstated after a conviction.

Is there a cost to obtain an administrative hearing in the state of Georgia?

There is a $150.00 fee that comes with requesting this hearing.  The smart thing to do is to hire an attorney to help you with sending in this request, to make sure that it is done correctly.

Adoption FAQ

What are the types of adoption cases that the Rockefeller Law Center handles?

The Rockefeller Law Center is a full-service family law firm, having assisted numerous satisfied clients with adoptions.  We are well-versed in adoption law and can help potential clients with any of the various types of adoptions (contested or uncontested) discussed below.

What is different about adoptions from other types of family law cases?

Before an adoption can be granted, the parental rights of one or both biological parents have to be terminated.  Nevertheless, termination of parental rights are typically either agreed to, have already been ordered by a juvenile court judge in a prior proceeding, or the biological parent fails to respond to the adoption petition seeking the termination.  In rare instances, the decision to terminate a biological parent’s rights can result in a full contested hearing.  Adoptions are decided by a Judge – this is no right to a jury trial in an adoption proceeding.

Who can adopt?

“Blood” relatives can adopt; these are the most common forms of adoptions.  A “blood” relative includes, grandparents, aunts, uncles, siblings, great-grandparents, great-aunts, and great-uncles.  “Step-parents” also have the right to adopt, but only as long as they are married to a biological parent.  Other people who might want to adopt (not a blood relative and not a current step-parent) are considered “legal strangers” to a potentially adoptive child.  In this case, these individuals can only adopt if they do so with the permission of DFACS or through an authorized adoption agency.

What is the legal issue in an adoption?

As with any other custody issue, the legal standard is the “best interests” of the child.  However, to terminate a parent’s rights, the court has to make a finding of “unfitness” by a constitutional standard of “clear and convincing evidence”.

What is “unfitness”?

In most adoptions, unfitness exists where clear and convincing evidence shows that the biological parent:
  • Has abandoned the minor child,
  • Cannot be found after diligent search is made,
  • Is clinically insane or incapable of giving consent, or
  • Has failed to exercise proper parental care or control due to misconduct or inability to properly provide for the minor child.
For a relative or step-parent adoption, the adopting adult can also specifically show unfitness by proof of clear and convincing evidence that, for a period of one year or longer immediately prior to the filing of the petition for adoption the biological parent has, without justifiable cause, significantly failed to :
  • Communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner,
or
  • Provide for the care and support of that child as required by law or judicial decree.

Is it always necessary to show “unfitness”?

No!  A parent can “waive” or surrender his or her rights and consent to the adoption.

What rights do biological fathers have?

The biological father, who never married the biological mother or “legitimized” the minor child, MUST respond to the adoption petition by filing a petition to legitimate the minor child.  If he does not do so and the petition for adoption properly pleads a basis for terminating his parental rights, the biological father will lose his parental rights.

What rights do biological mothers have?

The biological mother must consent to any adoption unless her parental rights have been terminated.

Does the minor child have any rights?

Yes!  A minor child older than fourteen (14) MUST consent to the adoption in the presence of the judge.

Can an adult adopt another adult?

Yes!  As long as the adopting adult and the adult being adopted both consent to the adoption.

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