Legal Eagles
All-too-common Legal Troubles & How to Avoid Them
January, 2013 - Issue #99
Another Way Drinking and Driving can really Cost You
Everyone is, hopefully, very familiar with the legal and financial responsibilities for getting caught while drinking and driving. These include suspension of one's driver's license, severe penalties and fines, jail time, community service, probation and others. If an accident is caused while drinking and driving, the penalties are even more serious for causing bodily injuries and property damage to ourselves and others.

However, despite all of the warnings, education, statistics and risks, people continuously drink and drive at an alarming rate, leading it to be one of the highest causes of death in the United States.

As if we needed any more reasons, another very compelling incentive to not drink and drive is a rarely-used but potent idea of "restitution" to a victim of an automobile accident involving a drunk driver. If, as a result of drunk driving, the drunk driver causes bodily injury to another person, the court must award full restitution to the victim for the victim's medical expenses, loss of earnings and property damage, as well as other out-of-pocket losses.

But wait a minute, you say; my automobile insurance will pay for the victim's medical expenses, loss of earnings and property damage. This is true enough. However, the court must award restitution for the out-of-pocket expenses, regardless of whether the drunk driver's insurance has paid for any of the victim's damages. Even though the drunk driver's insurance company paid for at least a portion of the victim's damages, the court may and often does still award additional damages to the victim in the event the drunk driver's insurance was not enough to cover the victim's damages. This is often the case. This includes medical expenses, lost wages, property losses, and may also include attorney fees. Payment of restitution to the victim can last for years, and is usually considered a term of probation.

The drunk driver is still mandatorily responsible to pay for the victim's losses. The amount of damages ordered by a court to pay a victim can be financially crippling to a drunk driver and cannot be discharged in bankruptcy.
Barry L. Edzant of the Law Office of Barry L. Edzant. 222-9929

Don't get Caught in a Custody Battle
When clients come into my office for a consultation and children are involved, the issue of custody can be very high on the list of priorities. When it is, the parents have been unable to figure out a custody schedule that works for both of them. When it is not high on the list, the parents have already made arrangements that have withstood the test of time. Those parents are to be commended.

In order to try to avoid a custody fight, it is important for the parties to understand the considerations of the courts in fashioning custody awards. The child's best interest is the paramount consideration for any custody award. In order to fashion custody awards consistent with a child's best interest, courts must consider, and effectuate, two critical public policies.

The court's "primary concern" is to assure the child's health, safety and welfare. The second policy is "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." The two policies are on equal footing if there is no threat of child endangerment. But where the policies conflict (like in a domestic violence case) a custody or visitation order "shall be made in a manner" that ensures the child's health, safety and welfare and the safety of all family members.

If parents understood these two policies and were objective about their application, a great number of custody battles could be avoided. In the majority of cases, parents will acknowledge that there is no danger to the child's health, safety or welfare when with the other parent. Thus, custody awards should be joint and the parties should work together towards obtaining a schedule that is somewhat flexible and works for both of them. If they cannot agree, the Court will ultimately resolve the dispute. But no one knows your children as well as you. Why let a stranger make the ultimate decision?
Richard A. Marcus, Esq. of The Marcus Law Firm 257-8877
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