A common issue co-parents have in rearing their children involves modifying or changing their child custody arrangement once a permanent order has been entered. Just because an order is deemed permanent, does not necessarily mean that it cannot be changed. Specifically, permanent child custody orders may be modified in two situations:
When a parent violates a court order, they may be found in contempt. A finding of contempt alone may not justify the modification of a child custody order. If the violation, however, is deemed to be serious enough to warrant a changed circumstance as for the custody arrangement, the custody or visitation order may be modified. The intent is not to punish the parent who violates the order, but instead to modify the order in the best interests of the child.
When one or both parents allege that there has been a change in circumstances that affects the child, a modification to the existing child custody order may be made. A substantial change of circumstances may involve something that changes the child’s wellbeing, relationship with their parents, the child’s personal wishes and desires, the conduct of the parents, and the child’s environment and living situation. The change must be substantial, and it must affect the child. This affect does not have to be adverse, but can be positive as well.
If you need to speak to a child custody attorney in regards to modifying an existing child custody order, contact Adkins Law. Adkins Law focuses primarily on family law matters, and has locations in Huntersville and south Charlotte.
By Elspeth Crawford
Father’s Day is a time for sons and daughters to come together in honor of the man who raised them from tiny infants to productive members of society. Unless they didn’t. Millions of parents the world over are non-custodial parents, meaning they live separate and apart from their children. Because all parents have a legal obligation to support their children financially, many of these fathers and mothers must pay child support, a task to which they’ve often proved less than equal. To give you a taste of the problem, non-custodial parents in California alone owed a total of 19.2 billion dollars in back child support in 2011.
Most of those arrears are owed by parents on the lower end of the income scale, but the rich and famous aren’t immune to child support woes. Here’s our list of the top five celebrity dads who may have some work to do before they can expect their Father’s Day cards:
1. Eddie Murphy. Actor-comedian Eddie Murphy was steadily married to wife Nicole Mitchell for eighteen years. The union produced five children, but after it ended in 2006 Murphy began looking for new companionship. He began dating former Spice Girl Melanie Brown, a.k.a. Scary Spice, a.k.a. The Spice Girl People Don’t Remember, shortly after his split. Brown gave birth to a baby girl in 2007, but Murphy denied being the father, at least until a paternity test put the matter to bed.
A determination of paternity is often a prerequisite to enforce any kind of child support obligation. Every state treats the process differently, but most assume that a husband is the father of a child born to his wife. If the pair is unmarried, things get trickier. Many fathers just admit that they’re dads, but if they don’t want to, the court can imply paternity through their dad-like actions, like caring for the child or supporting the child financially. In the case of the truly resistant, the court can order potential fathers to undergo a DNA test.
2. Terrell Owens. Owens, a former NFL wide receiver known for breaking into touchdown dances so funky he actually got fined for a few of them, has an expansive view of family. He has four children, each one by a different mother, and owes child support for all four. Although he made upwards of $80 million during his football career, Owens hasn’t been bringing much home since switching over to free agent status and eventually claimed that he couldn’t keep up with his mounting support payments. He asked a judge to lower his payments late in 2011.
Child Support payments are set by statute, usually as a proportion of net income. The Illinois statute even comes with a neat little graph that tells non-custodial parents how much of their income they owe: 20% for one child, 28% for two, and so on right on up to half of the money they make. This can cause a problem when, like Owens, a parent’s net income drops but they’re still paying a percentage of what they were making before. When that happens, they can petition the court to lower the order. Victory dances in court are not encouraged.
3. Charlie Sheen. Charlie Sheen, a man known equally for his impressive acting resume and mounting number of uncomfortable public breakdowns, divorced from wife Brook Mueller in 2011. As part of the divorce settlement, Sheen agreed to pay $55,000 per month for support of their twin sons Bob and Max. In June of 2011, a Los Angeles judge ordered that the support money be garnished from payments made to Sheen for his work as an actor on the popular sitcom "Two and a Half Men". It’s anyone’s guess how he’s making the payments today.
In the best of cases, the method of paying support is settled between the parents without need to resort to a judicial order. Wage garnishment is a common choice, but payment by check or wire transfer is also acceptable. In cases where non-custodial parents are unwilling to pay, courts have the power to, upon motion, order that payments be garnished from their wages. If the non-custodial parent tries to hide money that could be used for support, perhaps by transferring it to a new spouse or to a business, most state statutes provide courts with ways of garnishing the money from the transferee. The law puts a priority on money that should be used to make child support payments, so no matter where they’re hidden the court can likely reach them.
4. Dennis Rodman. Famously flamboyant former NBA star Dennis Rodman has been married a number of times, but his third marriage to Michelle Moyer is the source of his current parenting woes. The two have been wrangling over child support for their son and daughter ever since splitting in 2004. In 2011, Rodman was found guilty of four counts of contempt for failing to pay his back child support, which Moyer claims runs in excess of $800,000. Rodman’s monthly payments have since been lowered, but as punishment a judge recently sentenced him to 104 hours of community service, suggesting that Rodman use his “talents as a motivator, as a fine, fine athlete and as a fine person to assist others in need.”
Among the many tools judges have to enforce child support orders is the hammer of contempt. Failure to pay child support can lead to a finding of contempt, and a finding of contempt can lead, as in Dennis Rodman’s case, to forced community service. It can also lead to being put on probation, having one’s driver’s license suspended, or even jail time.
5. Joe Walsh. Tea party Congressman Joe Walsh has been dogged by child support problems throughout his tenure as the representative for Illinois’ 8th District. In 2011, ex-wife Laura Walsh sued him for $117,437 in overdue child support payments, pointing out that although he claimed that he had no money to pay her, he had little trouble donating $35,000 to his 2010 campaign or taking allegedly expensive foreign vacations in years prior. Joe Walsh denied these allegations, and they were recently laid to rest after the two settled for an undisclosed amount.
Most lawsuits, whether they concern child support or not, settle before they reach the trial stage. Such an outcome is doubly desirable for a politician like Walsh, who can’t afford to look like a deadbeat dad in front of his public, but is likely the best solution for most parents caught in these kinds of disputes. Settling out of court saves time, legal fees, and the psychic costs such battles can exact on children.
And there we are: five famous family men who ended up on the wrong side of the family law. But don’t think that men have a premium on missing their support payments. According to a recent survey of divorce lawyers, women are paying child support in higher numbers than ever before, so perhaps we’ll have a new list ready for you by Mother’s Day.
Adkins Law at the 2015 Lake Norman Business Expo.
By Elspeth Crawford
If an author has a copyright in his or her work, whether that work is a book, a piece of software, or some other creative endeavor, they are granted exclusive control over how the work can be used. However, that control is not complete. Other people can make limited use of that work so long as their use falls within certain guidelines. Those guidelines are called fair use, and this guide will look at their utility and limits.
Bounds of Fair Use
The bounds of fair use are set out in the Copyright Act of 1976. That law states that people are allowed to copy a creative work without permission from the author for certain limited purposes, including criticism, comment, news reporting, teaching, scholarship, or research. Sometimes, deciding whether fair use applies is easy. For example, if a teacher makes multiple copies of an excerpt from a copyrighted book to hand out to his or her students, such copying would be a fair use of the book. It would fall under the ‘teaching’ allowance specified in the law. However, most determinations of fair use are not so cut and dry.
Determining whether something falls within the ambit of fair use is a factually intensive process. Courts look at four different factors when making their decision. Not all of the factors apply to all works, and no one factor is determinative. The four factors are:
Purpose and Character of the Use
When deciding whether a work falls under fair use, a court will look at the purpose of the work. One thing they’ll look at is whether the work is commercial in nature. Say someone has taken a copyrighted photograph and used it in a collage. If they intend to sell this collage as its own work, the work would be commercial. If a work is commercial, it stands less of a chance of being found to be a fair use. If the artist did not intend to sell the collage but made it for his or her own personal benefit, it would not be commercial and would stand a better chance of being found to be a fair use.
However, even if that collage were commercial, it’s no guarantee that its creation can't be a fair use. Courts also look at whether a work is transformative, or sufficiently different from the original work so as not to be confused with it. Parodies fall into this category, as do works that re-appropriate the original work in a way that the original author did not contemplate.
Nature of the Copyrighted Work
The law has determined that some works, specifically those that are creative like novels and movies, are more worthy of copyright protection than those works that are not creative but just reproduce information, like the phone book. Information in something like the phone book is public and copying it would likely be a fair use, whereas copying a movie, which is a highly creative work, would not be.
Amount of Copyrighted Work Used
Say that a literary critic is reviewing a book and wants to print a short excerpt within the body of his review. Because the critic does not have a copyright in that book, he is in violation of the author’s copyright by printing a portion of it. However, a court may let this slide as a fair use because the amount of the book being reprinted is small when considering the book as a whole. The smaller amount of a copyrighted work someone uses when copying that work, the more likely a court is to hold that the copying is a fair use. Courts also look at whether the portion being copied is particularly important to the identity of the original work.
Effect of the Use on the Potential Value of the Copyrighted Work
The fourth factor in the fair use test, often called the most important factor, asks whether the potentially infringing work cuts in on a market which should be reserved for the original work. For example, if someone took it upon themselves to write and distribute a self-penned sequel to a popular novel, such a work would cut in on the sequel market for the original work. The unauthorized sequel would fail under this factor. If, however, that same someone wrote a parody of the original novel, that would likely be a fair use since the original author and copyright holder is very unlikely to want to enter into a market for books that make fun of his or her own creation. Basically, this factor asks whether an infringing work may cost the original copyright holder money. If it does, it’s less likely to be a fair use. If it does not, it’s more likely to be a fair use.
Remember that no one of the above four factors is determinative when deciding what is a fair use and what is not. A work can fail under one or two of the factors but still be considered a fair use if it succeeds under the remaining ones. Fair use is a complicated area of the law, and you should consult a copyright attorney if you have questions about whether a work you have created is protected under it.
If you're looking to hire a business attorney, then congratulations are in order, because that is probably a good sign that things are booming. But as you set off to find the right business attorney, you have to keep a few things in mind. First and most importantly, if you're hiring a business attorney for the first time, you need to make sure you don't get ripped off. This requires surveying the market to find out what the going rates are, deciding how much of your budget you want to allocate for legal expenses, and then selecting an attorney who fits within your budget.
Please note that when it comes to business attorneys, more money does not always mean more quality. In fact, sometimes, the opposite is true. Business lawyers at large firms charge insanely high rates, and they tend to specialize to a very narrow degree. For example, a given lawyer doesn't just practice business law, nor does he specialize on a particular type of transaction or even a particular type of deal document. Instead, a given lawyer might specialize exclusively on a particular clause within a particular deal document! Granted, he's probably one of only a few hundred experts on that clause, but if your legal matter doesn't pertain to that clause, you don't give a rats ass. You would rather have an attorney with a broader view of what's going on. The point is, you shouldn't assume that more money means higher quality of service.
The next thing to think through is the scope of the engagement. If you're hiring an attorney to perform a limited scope of services, you should search one way, but if you're hiring an attorney to be a long term partner and advisor in growing your business, then your selection process should be very different. As an example, some people hire an attorney to form their corporate entity (LLC, corporation, etc), and they know, at the time, that they have no intention of sticking with that attorney for the long haul. If this is the case, then it's perfectly fine to hire based on price and proximity (there are some caveats, which we will explain in a future article). On the other hand, if you're looking to hire someone who you will view as a trusted advisor and who will grow with you as a business owner, that is a very different story. It's the difference between searching for a provider of commodity legal services and searching for a true legal counselor.
The final thing that you should be aware of is the basics of how different services are priced. For services where the attorney is able to predict, with reasonable confidence, the amount of time and effort that will be involved, attorneys will generally be willing to price their services on a flat fee basis. Examples of this include incorporation, forming an limited liability company, and writing a partnership agreement. By contrast, services that appear open ended tend to be priced on an hourly basis. This is for good reason - if the attorney has no way of knowing how long the engagement will take or how much work will be involved, he would be ludicrous to commit himself to a fixed price. Examples of this tend to come from contentious cases - disputes between founders, disputes between management and owners, disputes between company and stockholders, etc.
That wraps it up for Business Attorney Fees in a Nutshell. In another article, we will put some actual numbers onto all of this to help you form a better idea of how much it will cost to hire a business attorney for your legal needs.
By Elspeth Crawford
Many homeowners these days fall into the unfortunate situation of not being able to afford their home loans. When the Grim Reaper of mortgages comes around, foreclosure is his scythe.
Foreclosure is a catch-all term for the legal process by which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments by forcing the sale of the asset used as the collateral for the loan, typically a house. Foreclosures are governed by the law of the state where the mortgaged thing is.
The foreclosure process is triggered once the borrower (mortgagor) falls so far behind on her payments that she enters default. The conditions for entering default vary, based on state law and terms in mortgage agreements. Once a borrower enters default, she starts to accumulate late fees, legal fees, and other charges that are added to her outstanding debt, as determined by the mortgage agreement and state law.
It’s important to note the lender does not have to foreclose; they are free to negotiate with the borrower. For example, they might agree to adjust the terms of the mortgage, refinance, allow the borrower to sell the property, or allow the mortgagor to make up for his or her missed payments.
Types of Foreclosures
Generally, there are two varieties of foreclosures: judicial foreclosures, which require a court order, and non-judicial foreclosures, which do not. In judicial foreclosures, the mortgagee must go to court and prove that it owns the mortgage and has the right to foreclose on it. Non-judicial foreclosures allow a mortgagee to foreclose without going to court. This is cheaper and quicker than a judicial foreclosure. Non-judicial foreclosures may only be used where the mortgage has a power-of-sale clause. These clauses most often appear in deeds of trust, a type of real estate secured lending instrument similar to a mortgage.
Most mortgages now include acceleration clauses. According to these clauses, if borrowers fall far enough behind in their payments, the rest of the loan is due immediately. Mortgagors usually invoke these clauses as a prelude to foreclosure. Most states regulate acceleration clauses, either generally, as specifically as applied to mortgages, or both.
In recent years, lenders frequently bundled groups of mortgages into mortgage-backed securities, and then sold shares of the securities to investors. As a result, some mortgages have many owners. Others have changed hands so many times that it is difficult to determine who actually owns them. As a result, it is often difficult for the mortgagors to modify the terms of their mortgage. Similarly, mortgagees might have trouble proving that they own a mortgage they want to foreclose on.
Right of Redemption
In some states, mortgagors have a right of redemption that allows them to get back foreclosed property. If the original mortgagee owns the property, mortgagors may exercise the right by paying the bank the unpaid balance of their mortgage. If the property was already resold at auction, mortgagors must pay the purchaser whatever he or she paid for it. Rights of redemption only last for a limited time, which varies by state.
The foreclosure process differs state by state, but we can take a look at the general steps that are taken. If you're faced with foreclosure, it's important that you research your state's laws and practices.
Foreclosure proceedings can begin after a single missed payment, but it isn't very likely. Most banks and lenders have a grace period for late payments, usually with a fee added on. It typically takes being a full 30 days late for the alarm bells to go off. After the second missed payment, you'll be getting some phone calls. Many lenders will only accept both late payments to bring the loan current. They also may refuse any partial payments.
Once you fall three months behind, things get serious. This is typically when most lenders will begin the foreclosure process in one of two ways: judicial sale, which requires that the process go through the court system, or power of sale, which can be carried out entirely by the mortgage holder.
All states allow judicial sale, while only 29 allow power of sale. If your state allows power of sale, the loan papers will usually have a clause that says this method will be used. Power of sale is typically faster than the judicial route. Let's look at both methods.
Power of Sale:
Both types of foreclosure require that any other involved parties be notified of the proceedings. For instance, if the homeowner took out another loan against the house with a third party, that lender must be contacted and its loan amount must be paid from the auction proceeds. If the third-party lender isn't paid, it can apply the mortgage to the new property owner. Many times, the lender will actually buy the property back and attempt to sell it through the real estate market at a later date.
There can also be deficiency judgments made against the borrower if the sale of the property doesn't satisfy the amount of the loan. The entire difference between the two can be required, although some states only require that difference between the fair value of the property and the loan amount be paid.
There's one more type of foreclosure that's almost completely obsolete, called strict foreclosure. In these cases, once judgment is made on the lawsuit, the property is automatically assumed by the mortgage holder. Only Connecticut and Vermont still allow this practice.
Take a look at our new animated logo produced by IMIGpro.
By Elspeth Crawford
The right of publicity is the inherent right of every human being to control the commercial use of his or her identity. If your image is used to sell something without your permission, that is a violation of your right of publicity. Some people, in particular famous people, have a bigger interest in enforcing this right than others. Rush Limbaugh, for example, is known for his conservative viewpoints on American politics, so he probably wouldn’t want to have his face put on an advertisement for a liberal talk show. But celebrities aren’t the only people entitled to protect their identities: everyone has a right to safeguard the way they’re viewed by the public large. On the flip side, if you have a business and are thinking about invoking a public figure as a way to promote yourself, knowing what lines you can and cannot cross is very useful.
Establishing a Violation of the Right of Publicity
If you or your business believes that some other person or company is trading on your name and reputation without your permission, or if you’re thinking of doing that yourself, know that there are a couple of things that must be shown before anyone has to pay up. Specifically, the person alleging that their right of publicity has been infringed must show that:
Something to remember about cases for infringement of the right to publicity is that intent does not matter. If you use a celebrity’s image to promote your product without knowing that who that celebrity is are or that they’re famous, you’re still liable for damages if they come after you.
What kind of remedies are available for a violation of the right of publicity?
In order to recover damages under a right of publicity case, it is not necessary to establish any economic loss. If a celebrity’s image has been used commercially as described above, some amount of damages will be presumed. However, such an amount is likely to be nominal. To recover anything more, the person whose image has been misappropriated must establish that they lost money as the result of the misappropriation. This can be difficult to do, but at the least they will be able to obtain an injunction ordering you to stop using the image in commerce. In the worst case, those who misappropriate someone else’s image can be made to pay expensive punitive damages if they misappropriate it with full knowledge that what they were doing is against the law.
Is there a time limit on filing a case for a violation of the right of publicity?
The statute of limitations for violations of someone’s right of publicity varies between jurisdictions, but typically the limitations period is one or two years.
Continuation of the Right of Publicity After Death
Like many rights, the right of publicity can pass down from one person to another. For example, a certain movie star may be deceased, but their right of publicity persists and if wielded properly can still stop people from misappropriating their image. Whether the right gets passed down after death depends on whether the celebrity at issue exercised the right during their lifetime. If they did, the right passes down their family tree, but if they didn’t their image passes into the public domain and can be used by anyone.