louisiana Archives - The Law Offices of Sonja T. Castella

Stepparent Adoptions in Louisiana: Laws and Documents

I was recently asked about the laws and documents surrounding stepparent adoptions. The questions come up quite frequently, so I decided to provide some information about stepparent adoptions and the necessary forms you need to file.

Adopting a stepchild by a stepparent is most straightforward when the biological parent consents. However, it can still be accomplished without the birth parents’ agreement. It’s just more complicated, and if an adopted child is over twelve years of age, their input is considered by the courts.

If you’ve married someone with a child or children from an earlier relationship, it’s common to want to adopt their loved one(s). But there is a lot of information you need to know before you get the process started.

The steps you need to take to adopt your stepchild.

Adopting a stepchild is considered an intrafamily adoption and has the potential to impact family dynamics tremendously. Because of this, governments require specific steps to be completed before granting adoptions.

Communication is key.

The process of adopting a stepchild starts at home. You, your partner, and the child (if mature enough) need to have honest and frank discussions about each of your desires and goals.

The decision to adopt has to be carefully and thoughtfully considered before starting the actual process. As the stepparent adopting your spouse’s child, it’s a personal decision that carries moral and legal responsibilities.

Consider your legal responsibilities.

Once you adopt your stepchild, they are considered, for all purposes, your child. You have established a legal and ethical duty to provide care and financial support to the child until they reach majority.

The adopted child obtains the same legal status as a biological child, including the right to inherit from your estate. Do you have the ability to provide financially and emotionally for your stepchild? Do you want to take on the responsibility of a child? These questions you need to consider before you proceed with adopting a stepchild.

Contact the child’s biological parent.

After deep reflection, discussions with your spouse, and stepchild, you desire to adopt the next step to contact the biological parent. Reach out to the child’s biological parent and inform them that you would like to adopt your stepchild.

Their consent to the adoption is necessary unless their parental rights have been terminated. Getting permission is often a high hurdle to overcome because it requires the biological parent to divulge their parental rights.

If the biological parent agrees, he should sign an authentic act that expresses his desire to consent to the adoption of his child and waive service of notice of any future proceedings. Click here to read the statute.

What happens if a biological parent doesn’t consent to the adoption?

If the child’s biological parent refuses to consent to the adoption or you have been unable to locate them, all is not lost. You can still move forward with the adoption, but you must seek to terminate the other birth parent’s parental rights.

In certain situations, the consent of the biological parent is unnecessary. For example, the court can terminate a parent’s rights if it determines adoption is in the child’s best interests and there is a finding that the parent has unreasonably withheld its consent.

Further, when a stepparent seeks to adopt their stepchild, consent is unnecessary when the parent has failed to support, visit, or communicate with the child for at least six months without just cause. Click here to read the statute.

In Louisiana, courts can also terminate parental rights if the parent has abandoned the child, is unfit, or determine the supposed father is not the biological parent.

What is considered abandonment under Louisiana law?

We often consider terms in their general sense; however, they usually have a specific legal definition. Abandonment of a child is deemed to occur when a parent fails to communicate with or failed to comply with a court order of support for six months.

The process of terminating a parent’s rights starts by filing a petition with the courts. You can click here to read the Louisiana Statute that addresses the termination of parental rights.

File a petition to adopt.

It’s important to know that stepparent adoptions fall under the laws of intrafamily adoptions and are handled differently than agency and other types of adoptions. In the title of your petition, you indicate that this is an intrafamily adoption.

La. Ch. Code Art. 1246 provides a format that you can follow, and states the petition shall be styled: “In re _________________, Applying for Intrafamily Adoption.”

The statute also lays out everything that needs to be in the petition:

The full name, address, age, occupation, and marital status of each petitioner.
The name by which the child is known to petitioners and the name under which the child’s birth is recorded.
The place and date of the child’s birth, if known; if not known, then the approximate age of the child.
If known, every parent’s name whose consent to the adoption is required under Article 1193(1) and (2) and proof of their consent, or the name of every parent and the reason such consent is not required as authorized by Article 1245.
The diligent efforts made per Article 1135(B), if the alleged father of the child is unknown, establish that his rights should be terminated according to Article 1135(A).
The date and circumstances under which the child entered the home of the petitioner.
Any relationship is existing between the petitioner and the child.

If the biological parent’s parental rights have not been terminated, the petition must be filed with the court, and a notice of hearing must be served on the parent. At this point, the parent can file an objection to the adoption, and a hearing will be held to determine the adoption issue. Here is a link to the notice requirements.

Is there a home inspection?

Typically in intrafamily adoptions, there is no home inspection or investigation of the family home life. However, if anyone raises issues, a court has the right to order an investigation and require the investigating department to provide a report of its findings. Remember, the child’s best interest is always paramount.

What happens at the hearing?

Once the petition for intrafamily adoption is filed, the court will set a hearing within sixty days if there is no opposition. If an opposition is filed, the court will fix it for a hearing within ninety days.

At the hearing, the court will hear all relevant evidence about the stepparents’ fitness to be a parent. The evidence may include the investigation report, the person’s criminal record, testimony about child abuse or neglect, and the parties’ testimony.

And if the adopted child is twelve years old or older, the court may ask the child some questions, including whether they want to be adopted. After considering all the evidence, the court will render a decree of adoption if it is in the child’s best interest.

If you have additional questions about adopting a stepchild, contact our office; we are an experienced family law firm with offices in Hammond and Livingston, Louisiana.

Disclaimer: The Law Offices of Sonja Bradley provide the above information as a courtesy, and it is not intended as legal advice.

How Much of My Criminal Sentence Will I Have to Serve?

Clients often ask me, “if I’m sentenced to x amount of years, how much time do I actually have to serve locked up.” That is an excellent question because the real-time spent behind bars is more critical to consider than the sentence.

Louisiana’s method of calculating good time and an early release is complicated. The actual amount of time a person serves his sentence depends on a variety of factors.

Most people think that calculating the time a person has to serve is simple, but it’s not. In some cases, people spend time incarcerated beyond their release date due to the Department of Corrections’ failure to understand its own guidelines.

Reducing the amount of time served incarcerated.

Year after year, Louisiana ranks at the top per capita incarcerations. To try and reverse this trend, Louisiana lawmakers passed criminal justice reform to reduce the prison population. Act 281/S.B. 220, 2017 Regular Session.Act 280/S.B. 139, 2017 Regular Session Act 282/S.B. 221, 2017 Regular Session

How to Calculate Good Time

Along with reducing the length of sentences and easing eligibility for drug court, the Legislature changed the calculations of “good time” credit for prisoners.

Under the new law, inmates earn “good time” credits easier, which reduces their time spent incarcerated. The new law significantly increases the “good time” rate for non-violent charges.

Under the most recent legislation, an inmate gets credited 13 days for every seven days they serve incarcerated; this reduces their annual sentence by 130 days. Inmates who are eligible and enroll in drug, educational, or work programs will reduce their sentences even more.

Loyolalawteck provides a “good time” calculator that is helpful and simple to use. The tool is designed to provide general information about a sentence but is not a substitute for legal advice. The Louisiana Department of Corrections is the final arbitrator of a person’s sentence.

Loyola good time calculator

Eligibility for parole

The new law also establishes that non-violent and non-sex offense crimes are eligible for parole after serving 25 percent of their original sentence. First-time violent offenders are eligible for parole after serving 65 percent of their sentences.

When Will I Get Released?

Louisiana’s system for calculating inmates’ release dates has created a lot of confusion. It is not uncommon for different Louisiana Department of Corrections employees to determine varying release dates for the same inmates.

It should be unacceptable to the citizens that Louisiana doesn’t have a central computer program to calculate an inmate’s release date. The State has figured out how to calculate and collect residents’ taxes, which is a much more complicated endeavor.

Are people imprisoned past their release date?

Even if all agree on your release date, it doesn’t guarantee you will walk free on that day. It is not uncommon for people to be kept imprisoned well beyond their release date.

A person can be held past their release date for several reasons, but the two most common are:

Failure of communication between the Parish and the Department of Corrections.
Human mistakes when calculating “good time.”

Throughout the State, hundreds of persons are held beyond their release date. Some of these individuals are kept incarcerated for years past the dates they were eligible for release.

The Department of Corrections employees has acknowledged the failure of the system. During a lawsuit, one employee testified that prison staff discovered approximately one case of over-detention per week for the previous nine years.

Calculating your release date is not easy, and the system is broken. These are problems that should be addressed immediately. It should outrage any citizen when a person is confined beyond his sentence.

There is a lack of accountability for over-detaining people. Some inmates that are over-detained file a lawsuit; however, these lawsuits are difficult to win. It’s easy for the Department of Corrections to recalculate inmates’ “good-time” and consider other factors to adjust the actual release date to coincide with a new day.

If you’re charged with a crime or need our assistance in any legal matter, contact our office to speak with an experienced attorney. We have offices in Hammond and Livingston, Louisiana. Call our offices at (225) 686-8006 or visit our website and email us.

What are Grandparents Visitation Rights in Louisiana?

Louisiana law gives grandparents the right to reasonable visitation with their grandchildren in certain situations.

There is a special bond between grandparents and grandchildren. When this bond breaks, it can be harmful to the children. So are there any legal remedies available that guarantee grandparents visitation rights?

Yes, Louisiana law gives grandparents the right to reasonable visitation with their grandchildren in certain situations.

Many grandparents want to see their grandchildren as much as possible; however, sometimes, the parents throw up roadblocks. In Louisiana, there are laws available to grandparents to break through these roadblocks.

Lousiana Statutes Governing Grandparents Visitation Rights

In Louisiana, three statutes control the visitation rights of grandparents, they are La. revised statute 9:344, Louisiana Civil Code Article 136, and Art. 1264 of the Louisiana Children’s Code.

La. R.S. 9.344

La. R.S. 9:344 is entitled: Visitation rights of grandparents and siblings. It enumerates specific instances in which visitation can be asserted for visitation by nonparents.

This statute doesn’t mandate visitation but provides that grandparents may have reasonable visitation rights. Further, the court retains the discretion to make its decision based on the best interests of the child.

The statute first covers instances when one of the partners of the marriage dies, or is interdicted, or incarcerated. Then the parents of the deceased, interdicted, or incarcerated may have reasonable visitation rights with children of the marriage.

Note that the occurrence must happen during the marriage, and is only available to the parents of the deceased, interdicted, or incarcerated party. Paragraph B applies the same principles when parents are living together as husband and wife without being legally married.

In paragraph D, the statute states when parents of a minor have lived apart for six months, in extraordinary circumstances, the grandparents or siblings may have reasonable visitation, if the court determines it to be in the best interest of the minor child.

Louisiana Civil Code Article 136

Art. 136. Award of visitation rights

Under Article 136 of the Civil Code grandparents may be granted “reasonable visitation” if the parents of the child are not married or cohabitating as married persons or if the parents of the child have filed a petition for divorce:

Under extraordinary circumstances, the statute provides that other relatives can seek visitation with the child. The court will consider the “best interest of the child” when making its decision.

Prior to granting visitation under Article 136, the court must consider the following:

A parent’s constitutional right to privacy to decide for their children and the presumption that a parent acts in their child’s best interest.
The quality of the relationship between the grandparents and the child;
Will the child benefit from the grandparent’s interaction? Does the child need additional oversight?
If the child is old enough, then the preference of the child should be taken into consideration;
The overall mental and physical health of all parties;

DIFFERENCES BETWEEN STATUTES

In the event of a conflict between the two articles, then R.S. 9:344 supersedes R.S. 136. R.S. 9:344 allows grandparents to petition the courts when they believe the family is in distress. This statute allows the grandparents to provide additional resources for their grandchildren.

Article 136 is designed to protect a child from the further disruption of their lives. If the two statutes conflict with each other, R.S. 9:344 is the controlling authority over Article 136, which makes sense as the first is geared toward protecting the child.

Courts interpretations of Grandparents visitation rights

Parents have a constitutional privacy right to raise their children how they see fit and are presumed to act in their children’s best interest. To overrule a parent’s decision, the state interest must be compelling, narrowly drawn, and not unduly intrusive of parental rights. Reinhardt, 97-1889 at pp. 4-5, 720 So.2d at 80-81.

The U.S. Supreme addressed this issue in the case of Troxel v. Granville, 530 U.S. 57. In this case, the Justices recognized a parent’s right to decide what is in the best interest of their child. And the court pointed out that simple disagreements over the amount of visitation would not be sufficient to outweigh the rights of a parent.

When courts apply either Civil Code art. 136 or La. R.S. 9:344 they must balance the state interests against a fit parent’s constitutionally protected fundamental right of privacy to raise their child as they deem appropriate. See Wood v. Wood, 835 So.2d 568 (La. App. 2002)

How does adoption affect grandparents visitation rights

Art. 1264. Post-adoption visitation rights of grandparents are limited. This statute provides that the parents of a deceased party may have limited visitation only if they didn’t forfeit that right by failing to object to the adoption.

What is an Aggravated Battery Charge in Louisiana

The terms used in the criminal justice system, not only in Louisiana but across the country, are not easily discernible for laypeople. The lack of clarity is especially true when it comes to the charge of aggravated battery. So, what’s an aggravated battery?

Aggravated battery is a felony criminal charge for the intentional unauthorized use of force against another person’s body with a dangerous weapon.

Many people charged with aggravated battery may have a viable defense. To be found guilty of aggravated battery, the prosecutor must prove each element of the crime beyond a reasonable doubt.

Elements of an aggravated battery

In Louisiana, aggravated battery is defined as a battery committed in conjunction with special circumstances, such as a dangerous weapon. So to understand an aggravated battery, it’s essential to understand the criminal charge of a battery. LA Code RS 14:34

A battery was committed

The first element that must be proven is that the accused a battery. A battery is the unauthorized use of force against another person’s body that results in offensive touching or actual physical injury.

A battery charge requires actual contact that was intended but not necessarily violent, but it does have to be unwanted or offensive. LA Code RS 14:33

A dangerous weapon

The dangerous weapon could be most anything that can potentially cause serious harm or death if used in a particular way. Some things are inherently dangerous such as knives and guns and even baseball bats.

But other objects may be considered dangerous when used in a particular way that isn’t as obvious. For example, driving into a person with a car or kicking someone in the head with a steel-toed boot.

If the object is not obviously a dangerous weapon, then the government will have to provide case-specific facts to show the item is a dangerous weapon when used in this case and by the accused.

Aggravated Battery Sentences

Aggravated battery is a felony in Louisiana. A person found guilty of aggravated battery shall be fined not over five thousand dollars, and/or imprisoned for not more than ten years, or both.

By statute, one year of the sentence has to be served without benefit of parole, probation, or suspension of the sentence if the victim was attacked because they were an active member of the U.S. Armed Forces or a disabled veteran.

Crime of Violence

By statute, aggravated assaults are classified as crimes of violence. Persons convicted for crimes of violence have to serve 85% of their sentence and are not eligible for a deferred sentence under Article 893. Click here to read more about crimes of violence.

Probation for aggravated assault

Louisiana does allow probation for a person convicted of aggravated assault. Sentencing is left to the judge, and they have the discretion, send a person to prison, suspend the sentence, or place the person on probation.

If a judge sentences a person to probation, he typically orders the defendant to comply with special conditions, such as: paying fees, perform community service work, and attend classes.

Failure to comply with the conditions of probation will likely result in revocation of probation. If a person has their probation revoked, they will likely serve the remainder of their time in prison.

Defense to Aggravated Battery charges

Wrong person

The most common argument is that they have the wrong person. You didn’t do the crime and was somewhere else at the time the offense was committed, and you have an alibi witness.

No intent

Another common defense is that you didn’t intend to touch the victim or to cause them harm. For example, if a man were swinging a bat to exhibit his batting prowess and accidentally struck his wife who was standing nearby, the defense would be that he didn’t intend to hit his wife in the head.

Consent

Consent is a defense, and if it can be shown that the victim and accused were engaged in mutual combat, it may be considered that each is equally responsible for any injuries.

For example, if two women get into a shouting match in a nail salon and agree to “take it outside” to fight, then neither woman can claim that their injuries were a result of criminal battery. They both decided to participate in the brawl.

Self-defense

Self-Defense can be used as a defense. The accused must show he was using reasonable force to protect himself from an attack started by the victim, and the victim’s injuries were the result of their attempt to defend themselves.

For example, if two men are in a bar and one guy starts harassing the other and then hits the man and holds him on the ground and tries to take his watch.

The man reacts by striking the thief over the head with a beer bottle, causing a gash in his head, then the man that was first attacked used reasonable self-defense and would likely not be found guilty of aggravated battery.

If you’ve been charged with the crime of Aggravated battery, contact our office to speak with an experienced criminal attorney. We have offices in Hammond and Livingston, Louisiana. Call our offices at (225) 686-8006 or visit our website to email us.

How Do You Get a Restraining Order in Louisiana?

If you or your children are the victims of violence or have been threatened with violence, you need protection. A restraining order may be the protection you need. But do you know how to get a restraining order in Louisiana?

To start the process, you need to file a petition for a restraining order with the court. There are no costs or filing fees for filing the petition. You can get a copy of the forms here.

Restraining orders provide protection and deter an offender from attempting to contact you. In Louisiana, there is a lot to know about restraining orders, but the process of applying for one is simple.

Restraining orders

A restraining order is a particular type of protective order; it is a temporary civil court order of protection. It prohibits someone from carrying out a particular action, like approaching or contacting a specific person.

They are often needed when couples separate, divorce, or are in fear for their safety. Louisiana statutes outline situations eligible for requesting restraining orders:

Types of protective orders

A restraining order, temporary restraining order, and protective order are terms often used interchangeably; however, in Louisiana, they each have a distinct legal meaning. The following is an explanation of these terms:

Emergency Temporary Restraining Orders: An emergency temporary restraining order is filed during an emergency and outside regular court hours. If the court grants an emergency temporary restraining order, it provides immediate protection from an abuser. You must go to court and request a temporary restraining order or a protective order on the next business day because the temporary emergency order expires.
Temporary Restraining Orders: You can request a temporary restraining order in conjunction with a long-term protective order. The court can issue a TRO without the abuser present; however, the abuser will be notified of the rule against him, and a date for a hearing will be set. See RS 46:2135
Long-term Protective Orders: After a hearing, a court can issue a protective order that lasts up to 18 months unless otherwise stated. However, some parts of the order last indefinitely, specifically the section saying the abuser should not “abuse, harass, or interfere with the petitioner or his/her employment; should not go near the residence or place of employment of the petitioner, the minor children, or any person on whose behalf the petition was filed.”

Who can file for a restraining order?

Anyone can request that a court issue an order restraining a person from activities of potentially harmful behavior, but only those orders issued to prevent domestic abuse, dating violence, or stalking are included in the Louisiana Protective Order Registry.

The following persons are eligible to file an order of protection under the Louisiana Protective Order Registry:

Domestic Abuse Assistance Act

The domestic abuse assistance act, as defined by L.A. R.S. 46:2131, outlines the parameters for filing a request for a protective order against a family member.

To be eligible to file under the domestic abuse assistance act, the petitioner must meet specific requirements. Specifically, the relationship between the abuser and the person requesting protection must be one of the following:

Family members can file: Family members are defined as spouses, former spouses, parent/child, stepparent/stepchild, grandparent/grandchild. An abuser could also be a household member.
Household members can file: Household members are persons who currently or formerly lived in the same residence with the abuser and who is involved or has been involved in a sexual or intimate relationship with the abuser.
The parent, or an adult household member, or district attorney on behalf of a minor child or an adult deemed incompetent.

Protection from Dating Violence Act

The protection from dating violence act is codified in LA. R.S. 46:2151 and extends the same protections as the Domestic Abuse Assistance Act to dating partners. Dating partners do not have to have lived together to be eligible.

Protection from Stalking Act

A protective order can be filed by a person who’s being stalked by a stranger or acquaintance under La. R.S. 46:2171, et seq.

Protection for Victims of Sexual Assault Act

Under La. R.S. 46:2181, a person who has been sexually assaulted by a stranger or acquaintance can file a petition for a protective order.

How to get a restraining order

To get a restraining order, you can contact an attorney, law enforcement, call an abuse hotline, go to the courthouse, or call 911 if you are in immediate danger.

If you go to the sheriff’s office or the courthouse, they will provide you with forms to fill out to request the restraining order. Once this is done, arrangements are made for you to speak with a judge so you can explain your circumstances.

If the judge grants the temporary restraining order, a hearing will usually be set within two weeks. Make sure you show up for the court date. During the trial, the judge will decide the duration the permanent restraining order will be in effect, and if you have children, he will address any existing child custody arrangements.

Domestic violence during child custody is taken very seriously by the courts. The child custody order may be temporarily adjusted and re-evaluated after conditions set by the court have been met, and the restraining order is removed.

Where is it proper to file for a protective order?

You can file a petition for a protective order in the parish you lived with your abuser, where you live or the parish where your abuser lives. You can file in the parish the abuse occurred, or if divorce has been filed, the petition can be submitted in that parish.

What to do if the abuser violates the protective order?

The best thing to do when a person violates a protective order is to call 911 and inform the authorities of the violation immediately. If the police do not arrest him, be sure a police report is filled out. You need to document all the information about the occurrence, the name of the officer, the report number, date, and time of the offense.

You can also file a notice of civil contempt with the court for the abuser’s violation of a court order.

IF YOU NEED assistance with A temporary restraining order, CONTACT OUR OFFICE TO GET AN EXPERIENCED ATTORNEY. WE HAVE OFFICES IN HAMMOND AND LIVINGSTON, LOUISIANA.

Can You Undo (Reverse) An Adoption in Louisiana?

Your biological child was adopted, and you want to know if the adoption can be reversed. Or maybe you were adopted and are curious if the adoption can be undone. Questions like this are common, so can you undo an adoption in Louisiana?

Yes, in limited situations, adoptions can be reversed in Louisiana. The laws regarding the nullification of adoptions are stringent and are rarely granted.

There are various reasons a person may want to undo an adoption, but once a final order approving the adoption has been entered, it isn’t very easy to reverse. If you formally consented to the adoption, it is almost impossible.

Filing a Petition to Undo an Adoption

In Louisiana, the preferred nomenclature to reverse an adoption is a Motion to Annul Adoption. Courts typically don’t undo an adoption.

Who can petition the Courts to Annul an adoption?

The Child’s Birth Parents – In Louisiana, a child’s biological parents can file a petition to annul an adoption in certain situations. In some states, the adoptive parents can consent to the reversal of adoption and agree to relinquish parental rights back to the birth parents.
The Child’s Adoptive Parents – The child’s adoptive parents may petition the court to undo an adoption in very limited circumstances.
The Child – There may be reasons a child wants to cut bonds with their adopted family. These usually occur later in life due to failed relations.

Grounds for an annulment of an adoption

A procedural process must be adhered to in the adoption process. If the process was tainted either by fraud or duress, the adoption could be reversed. The most common attack on approval is that the consent of the biological parent was obtained through fraud.

The Louisiana Constitution guarantees that a birth father has the right to develop a relationship with his child; this is established in the following language: “no person may be deprived without due process of law under our state constitution.” The Lousiana Supreme Court established the following rights of unwed fathers in reference to adoptions:

An unmarried father’s right to veto the adoption of his child cannot be terminated or forfeited without notice and a hearing on this issue. If no response to a proper notice is received from the father, or he can’t be found in a reasonable time, the court may terminate his parental rights.
When a birthmother executes an act of surrender of an illegitimate child and identifies the father, he must receive notice of the adoption. He has the right to file an opposition to the adoption.
When the mother names the alleged father, but his whereabouts are unknown, a curator will be appointed and make a diligent effort to locate the father. If the father can’t be found, his parental rights are terminated.
If the mother claims that the birth father is unknown, his rights are terminated after a diligent effort has been made to identify the father.

It’s not too difficult to imagine how fraud could find its way into the process to deprive a father of proper notice of the adoption of his child. For example, a mother could list a fake name as the father of her child on the birth certificate, and the biological father never receives notice of the adoption.

Note: The Louisiana Children’s Code presides over the adoption laws in Louisiana and provides a legal framework for adoption in the state. Notably, Louisiana’s legal system distinguishes itself from other states by following the civil law system.

If you need help with an adoption, contact our office to get an experienced family law attorney. We have offices in Hammond and Livingston, Louisiana.

Are Divorce Records Public in Louisiana?

Going through a divorce is tough and can get ugly. There are usually tons of documents filed, especially if alimony and child support are involved. Having sensitive documents in the clerk of courts office raises an issue, are divorce records public in Louisiana?

Yes, most of the documents are part of the public record unless there is a specific reason they should be sealed.

Although most documents are public, there are some steps you can take to limit access to your divorce documents by the public.

What records are public?

There is no federal constitutional provision that gives the public the right to access judicial records and proceedings. However, the United States Supreme Court established that a trial is a public event, and all information is public property. (Check out the case of Craig v. Harney, 67 S.Ct. 1249, (1947) to learn more about open access to records.)

Divorce documents filed with the clerk of court are considered public records. These documents must be kept by the court and are available to the public, meaning any person can inspect, examine, and copy the filings regardless of the purpose.

The reason people don’t regularly access these records is they’re unaware of the process required to retrieve the documents, or they are don’t know the materials are publicly available. And of course, there is the expense; governments do not provide copies for free.

However, governments have made it easier and cheaper than ever to obtain public records. Most documents can be assessed through the clerk of court’s website for a minimal fee. So, for a small fee and a little knowledge, anyone can obtain a copy of your “confidential” divorce documents.

Sealed Records

When a court deems records are sensitive and should not be public, they can enter an order to have the records sealed. Individual documents could be sealed or the entire divorce proceedings.

When a record has been sealed, a person must obtain a court order to view the documents. For example, a court may seal divorces that deal with children, domestic violence, or sensitive business information. They might also seal documents that contain false accusations that would be harmful and create undue harm.

Sealing your records

To have your documents sealed, you need to file a motion with the court requesting the records be sealed. In the action, you will need to convey the reasons you believe sealing the documents is necessary.

Just because you file a request, it is not automatic that the court will grant your motion. You need to provide proper reasons before the judge agrees to seal your case. You can’t just claim it will be uncomfortable for you if the record isn’t sealed.

The Louisiana Supreme court took up this issue in the Copelands divorce case. Al Copeland, the founder of Popeyes Fried Chicken, requested his divorce records be sealed from the public. The New Orleans Times-Picayune wanted to see the documents and filed a suit to obtain access.

The district court and court of appeals agreed with the Copelands that the documents should be sealed, but the Supreme Court disagreed. They found that there may be some justification for sealing portions of the proceeding, but a blanket order sealing the entire record was not warranted.

If you file a motion to seal your divorce proceedings, it would be advisable to request specific pages or parts of documents to be redacted and not file a motion to have the entire record sealed.

If you need help with your divorce, contact our office to get an experienced family law attorney. We have offices in Hammond and Livingston, Louisiana.

Is The Smell of Weed Probable Cause in Louisiana?

Louisiana, through a series of laws, legalized the use of marijuana for specific medical conditions. Does the new law raise affect warrantless searches? or more to the point “is the smell of weed probable cause for a search in Louisiana?”

The smell of weed in a motor vehicle is “probable cause” to search a car; however, the smell of marijuana is not probable cause to search a residence.

With the recent changes to marijuana laws, it’s vital to know your rights regarding legal searches.

The smell of weed can be probable cause to search your vehicle

In Louisiana, an officer can legally search your car without a warrant if they have probable cause to believe a crime has been committed, and there is evidence of the crime in your vehicle.

The smell of marijuana or alcohol emanating from your vehicle is probable cause that you are committing the crime of operating a vehicle under the influence of drugs or alcohol, and they have the authority to search your car without a warrant or consent.

However, their authority to search your car isn’t boundless. They can only explore the area of the vehicle that they believe contains evidence of the crime. They are not allowed to perform a comprehensive search.

The smell of weed may not reach the probable cause threshold to search your residence

To permit governmental agents to search on such a basis would undermine the right of individuals guaranteed by our

Individual rights are protected in Louisiana by the state constitution which state persons “shall be secure . . . against unreasonable searches, seizures, or invasions of privacy.” La.Const. of 1974, Art. 1, Section 5.

The protections apply not only to people but also to their property. However, sometimes law enforcement officers may conduct searches without warrants. Whether a warrantless search is legal comes down to the reasonableness requirement.

Generally, a search and seizure conducted without a warrant but based on probable cause that a crime has been committed is per se unreasonable unless justified by an exception to the warrant requirement

The warrantless exception of exigent circumstances was used in the past to conduct a property search based on the scent of weed. Courts consider “exigent circumstances” as an emergency requiring immediate action to protect life or the destruction of evidence.

In these cases, the courts look at the totality of the circumstances, including the gravity of the offense. Since the advent of the new marijuana laws and the subjective nature of the sense of smell, the scent of marijuana does not fit into any warrantless search exception. The smell of weed is not probable cause for a search in most locations.

If police suspect you’re growing or smoking weed in your house, they need more than just the smell of marijuana to search. It’s also true that a police officer must witness you smoking marijuana in public to arrest you.

If you think your car or residence was searched illegally and your rights were violated, contact our office to get an experienced criminal defense attorney on your case. The evidence obtained in a search may be excluded from being used against you.

Can Tinnitus Be Caused by Whiplash in a Car Accident?

You’ve been in a car accident and suffered a whiplash, plus you have a constant ringing noise in your ears. Your doctor diagnosed tinnitus, and now, you are curious to know if the car accident caused your tinnitus and whether you can file a claim based on this condition.

Yes, you can file a claim for damages for any injury you suffered in a car accident, including tinnitus. One of the causes of tinnitus is whiplash, i.e., head and neck injuries.

The term “whiplash” typically refers to neck pain, headaches, and a stiff neck. However, there are other symptoms associated with whiplashes, such as ringing in the ears or tinnitus.

Tinnitus caused by Whiplash

Whiplash is an injury to the neck caused by forceful, rapid back-and-forth movement of the neck, like the cracking of a whip. Whiplash commonly occurs during a rear-end auto accident.

Statistically, about 80% of whiplash injuries due to traffic accidents recover within a few months. However, about 15% – 20% develop “late whiplash injury syndrome” with many complaints including neck pain, headache, disturbances of the head sensorineural systems, including vertigo, hearing loss, and tinnitus.

Sometimes injured persons don’t focus on tinnitus at the time of the accident but research into “late whiplash injury syndrome” explains why ringing in the ears after a car accident often goes undiagnosed for weeks.

Tinnitus is defined by WebMD as “a common condition characterized by the sensation of sound for which there is no external source outside the individual.”

In other words, people with tinnitus hear noises such as ringing, clicking, or buzzing when no environmental or external sounds are present. The late whiplash injury syndrome is frequently permanent.

Because of its permanent presence, the constant ringing in the ear often becomes intolerable and is severely disturbing to daily life. The degree of psychical impairment depends on the intensity of the tinnitus. Simple, non-contact whiplash injury can cause long-lasting, chronic disturbances.

Sometimes, ringing in the ears after a car accident is the result of a traumatic brain injury (TBI). Trauma can cause damage to the brain function resulting in tinnitus. At some point, individuals recognize the ringing is not going away and seek medical treatment.

Tinnitus occurs when the nerve pathways of the ear are damaged by head trauma. When these nerves are affected, it causes a “rewiring” of the brain’s tone map. Individuals who suffer a traumatic brain injury may have dormant nerve clusters in the brain activate.

The activation of nerves results in information flowing an incorrect route and sent to a part of the brain not meant for processing auditory information. Accordingly, these clusters of nerves not generally associated with hearing create a ringing the ears.

Can you file a claim for tinnitus caused by a car accident?

Yes, you can file a claim for tinnitus caused by a car accident; however, just like in any personal injury claim, you must meet some legal standards. Louisiana’s negligence law is codified in Civil Code Article 2315 (A), which states: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Tinnitus is just like any other injury, it requires proof you have the condition, that the motor vehicle accident caused the disease, and the other party was at fault in causing the accident through his negligence.

To establish your claim, you must show that the negligent conduct was a cause in fact of the harm you suffered, the party had a duty and breached their duty, and finally that you suffered damage because of the breach of the obligation.

Once liability is established, the party at fault is responsible for your losses. The recoverable damages are divided into two categories, special damages, and general damages.

Special damages are easy to determine. They are the actual hard dollars lost because of the accident. The party at fault is responsible for any medical bills, past and future, past, and future lost wages and any personal expenses you have related to tinnitus.

You are also entitled to recover general damages. General damages are not as simple to value; they include personal losses such as past pain and suffering, future pain and suffering, mental anguish, loss of enjoyment of life, and loss of consortium.

What legal steps should I take regarding my tinnitus injury after my accident?

Contact our office for a free consultation with an experienced attorney as soon as possible after your car accident. Ideally, you should set up an appointment within one week of the accident for several reasons:

Insurance companies move fast and begin their investigation of your claim immediately
It would help if you had legal advice before the first offer the insurance company gives you
Proceeding without an attorney increases the chances of a mistake that costs you money

Insurance companies sometimes offer “fast cash” to settle your claim. Don’t rush; likely, you don’t know yet what the total cost of your injury will be. Many tinnitus ailments cause chronic pain or permanent disability. A lawyer can help you assess the full value of your recovery and help get you the total amount of money you are owed.

If you have been injured in a car wreck contact our office to schedule your free case evaluation. (225)686-8006

Can You Get Arrested For Being High?

It is becoming common for states to decriminalize recreational marijuana use or approve it for medical purposes. But, can a person still get arrested for being high?

Not typically, but if being high leads to violating public intoxication laws, then yes. It is a violation of these laws when you disrupt the peace, cause a disturbance, or pose a threat to others.

Many Louisiana residents may not realize that you can get arrested for being high. But, in Louisiana, public intoxication is a crime regardless of the substance you used.

Being high can lead to your arrest.

Being high in public can lead to your arrest in certain situations. It is a violation of RS 14:103 Louisiana law governing disturbing the peace to be publicly intoxicated.

The term “intoxicated” is not limited to being under the influence of alcohol but includes illegal drugs, controlled substances, or another intoxicant (including inhalants such as paint thinner or glue).

Public intoxication arrest typically occurs because of some disturbance, such as injuring other persons or harming property, or posing a threat to your safety.

To gain a conviction, prosecutors don’t need test results but often rely on the testimony of the arresting officer to prove their case.

A charge for disturbing the peace can result in a fine of $100 or less, 90 days or less of imprisonment, or both. The baseline penalty can be enhanced depending on the specifics of the crime.

Disturbing the peace is a charge that will remain on your criminal record unless you get it expunged. An expungement is a civil action to seal your criminal record, making these records unavailable through the State or Federal authorities.

Can I Get Arrested for Possession of a Small Amount of Marijuana?

Yes, in Louisiana, the possession, sale, and cultivation of marijuana is illegal. In specific circumstances, marijuana can be used for medical purposes.

While it is not technically a crime to be loaded in public, possession of any amount of marijuana is still illegal (unless you have a prescription).

Louisiana considers marijuana to mean all parts of plants whether growing or not; the seeds; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.

The law does not restrict the use of mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of a plant which is incapable of germination, or cannabidiol when in a drug product approved by the United States Food and Drug Administration.

Persons who drive high are subject to Louisiana DWI/DUI laws. If an officer pulls you over and believes that you are high, he may search your vehicle and even arrest you on a marijuana DUI.

What Are the Criminal Penalties for Possession of Marijuana in Louisiana?

The penalties depend on the amount you are charged with possessing and your prior criminal record.

FIRST AND SECOND OFFENSES

First and second offenses for possessing marijuana is a misdemeanor in Louisiana. You will face a fine of up to $300 and have a drug charge on your record.

THIRD OFFENSE

From the third offense or more, possessing marijuana in Louisiana is a felony. You are looking at up to two years in prison and more substantial fines.

LARGE AMOUNTS AND DISTRIBUTION

If you are caught possessing large amounts of marijuana (2,000 pounds or more) and distributing it to others, you can face up to 20 years in prison.

Do You Need An Attorney?

Although an arrest for disturbing the peace laws may seem silly, these charges can stain your record. If you are charged with a crime and are considering an attorney contact our office. We are experienced and can evaluate your case and inform you about your best options.