In re Grantham:
The custodial father of minor children is called up for active duty. He refuses to let the mother care for the children during his absence, instead putting the children into his mother's care. The children's mother sues to modify custody to make her primary caregiver, which is granted by the district court. The appellate court overrules, claiming any hearing should've been postponed until the father's return because of the Soldier's and Sailor's Relief Act, and noting that the Court felt the only grounds for the custody change stemmed directly from the deployment of the father. The Supreme Court disagreed, finding: 1) A stay under the SSCRA was not necessary if there was no substantial prejudice to the father's rights. Because the factual record clearly showed that the defendant manufactured the circumstances by concealing the arrangements to have his mother care for the kids until it was too late to seek judicial intervention before deployment, because his rights were adequately represented by his lawyer, and because he couldn't show that the outcome would've been altered by his presence at this hearing, no prejudice was shown in this case. 2) The Court could hear evidence regarding parenting issues arising even after deployment, it is not in the interests of an accurate adjudication or in the best interests of the minor children to ignore matters that happened during the father’s absence if those matters weigh in favor of a change of child custody. 3) Regardless, there was sufficient evidence to support the change in both temporary and permanent custody based on numerous things done by the father both before and after deployment, designed to undermine the kid's relationship with their mother. Primary care transferred to mom.
Blog commentary: You really should be careful playing underhanded legal games, the courts get seriously annoyed with you. Unless you've truly sewn things up air-tight, they can and many times do find a way to balance the scales.
State v. Philo
Basically, the “while participating in a public offense” parts of certain crimes, in this case felony eluding, means that they actually have to be relatively close in time to committing the crime. In this case, the guy went 25+ MPH over the speed limit when being chased after police ran his plates and discovered the vehicle he was driving was stolen. The county attorney charged him with a felony eluding, instead of a misdemeanor eluding charge, based on the "while participating" element. The defendant pled guilty, but then thought better of it and appealed on the basis of ineffective assistance of counsel - his lawyer should've realized that because he'd stolen the car over two days before in another county, he was no longer "participating" in the theft. The Supreme Court agreed:
It is significant that our legislature not only defined participation to commence when the first act occurs towards the commission of the offense, but described withdrawal from the scene in the context of the “intended crime.” This shows the scene is tied to the area where those acts, beginning with the first act, occur that directly result in the commission of the offense. Once the offense has been committed, the scene is defined, and participation can only extend beyond the scene in the event of a pursuit that takes place prior to withdrawal. We agree with Philo that the record failed to reveal a factual basis to support the “participating in a public offense” element of the offense of felony eluding.
No comments:
Post a Comment