The Legal Insider

June 2018

The Truth About a Father's Right to Custody

On the third Sunday of every June, we celebrate the more than 70 million fathers in the United States with tokens of appreciation, backyard BBQ's, and outdoor activities that make Dad's eyes sparkle. The origin of Father's Day began on June 19, 1910, in Washington State after a woman named Sonora Smart Dodd drummed up support for an official Mother's Day equivalent. For 62 years, until it was made a federal holiday in 1972, controversy loomed over the day—much like it has with child custody and the truth about a father's rights with respect to his children.

The Truth About a Father's Right to Custody

One of the most common misconceptions about child custody cases is that mothers are more likely to gain custody of children than their father counterparts. In truth, gender is irrelevant in family courts, and custody decisions are based on the best interests of the child. No matter what the parents or children desire, a judge will place the most weight in what is best for each child.

Historically, very few rights were given to women, and this of course, meant that custody was usually awarded to fathers. Over time, mothers were increasingly awarded custody of their children—not because of women's rights, but because courts began basing their decisions on the best interests of the child. This standard remains true today, and if a court finds that living with dad (or mom, or a combination of the two) is the best situation for the child, it shall be ordered as such.

Commonly, the parent who has sufficiently prepared enough evidence that supports their bid for custody, will often be awarded custody. Retaining an experienced family law attorney is highly advantageous for any parent going through the legal system, especially in contentious situations.

Ideally, both parents will strive to keep child custody negotiations civil. For children, friendly associations between their parents creates a sense of security and stability. For parents, the right to spend time with their children and make important decisions should be fairly negotiated with an agreeable custody outcome. In the end, it all boils down to what is best for the child, and in many cases, this means living with dad.


Dangers of Owning a Pool During the Summer

Did you know that the number one cause of death in children between the ages of one and four years, is drowning? This is a frightening statistic for pool owners, and a staggering reminder to keep pool safety at the forefront. Children are not the only ones who are at risk around pools; the culture of pool parties and alcohol consumption also puts adults at an increased risk of injury and death.

Dangers of Owning a Pool During the Summer

Most pool-related injuries occur when no one is home, or when the pool area is vacant. In order to prevent a tragedy and to protect yourself from liability, the following are suggested steps to improve the safety of your pool:

  • Reduce access by fencing pool and spa enclosures, and place locks on all gates and entrances. Keep patio furniture away, to discourage people from boosting themselves and climbing over.
  • Ensure that life-saving equipment, such as buoys, reaching poles, and a first aid kit are always present.
  • Children should ALWAYS be supervised in the pool and the surrounding area.
  • Keep children away from suction devices, such as pool filters, as these can cause injury and drowning.
  • Remove floats, toys, and anything else that may lure children into reaching for and retrieving from the pool.
  • Never allow intoxicated people to sit in the spa or swim in the pool.
  • Consider an underwater alarm or surface wave.
  • Purchase gap insurance for additional coverage on your property.
  • Post signage, such as 'At Own Risk' and other warnings at the pool and around the property.
  • Install and use a lockable safety cover on the pool and spa.

Owning a pool is a serious liability for homeowners. Despite taking preventative steps, it is still possible to be held responsible for an unforeseen tragedy. It may be worth it to hire a consultant to review the safety features of your pool, and provide suggestions on how to make your at-home oasis a safer and less-worrisome environment.

Small, inflatable pools should not be overlooked, either. Infants and toddlers can drown in a beer or soda cooler, so any type of container that children can get into should be carefully watched. If you do not already know CPR, take a class, and be prepared to use it. On a hot summer day, owning a pool can be such a luxurious treat—just be sure to take the necessary steps to protect yourself and others from harm.


Leaving Your Children in a Hot Car: Don't Do It!

Summer is a busy time for parents. In addition to work, doctor appointments, and grocery store runs, summer adds more chaos with baseball games, pool parties, and sleepovers. Unfortunately, it is not uncommon for a parent to accidentally leave their child locked in the car on a hot summer day.

Leaving Your Children in a Hot Car: Don't Do It!

Most incidents involving children left unattended in a hot vehicle are due to busy lives and forgetfulness. However, leaving a child in a vehicle with the air conditioning on, also isn't a good idea. In some states, such as California, it is against the law to leave children under the age of 12 in cars without an adult present. If the car is running, children have access to the power windows, which they can fall out of, and they may also copy their parents' behaviors by crawling into the driver's seat and releasing the handbrake—putting themselves, pedestrians, and other motorists in danger.

Within the first 30 minutes of parking, and even on cool days, the temperature in a vehicle rapidly rises. An outside air temperature of 85 degrees Fahrenheit can cause the temperature inside a vehicle to reach 102 degrees within ten minutes, and 120 degrees within a half hour. The situation turns dire when the body reaches a temperature of 104 degrees and cannot cool down. For children, this happens quickly, as their body temperature rises 3-5 times faster than adults. Within an hour of being locked in a hot car, the progression of heat stroke, disorientation and confusion, organ failure, coma, and death are likely to ensue.

Each year, roughly 37 children die from vehicular heatstroke, or hyperthermia. Just this past May 2018, a Nashville father dropped one of his children at daycare, drove home, and took a ride-sharing service to the airport for a business trip. He forgot his baby daughter was still in the backseat. In cases such as this, what happens to the person responsible for the tragedy?

There are 19 states that have strict laws which make it illegal to leave a child alone in a car, and 15 other states have proposed similar laws. In some cases where children have died, defendants have been charged with negligent homicide, while others face no charges.

States vary on legal consequences, ranging from fines and misdemeanor charges for leaving a child alone, to felony charges and prison time. No matter where it happens, a child who dies from being accidentally left in a hot car is a tragedy. Whether someone will face criminal charges is left to the prosecutor. Most of these cases are not intentional, and for those that do face criminal prosecution, sometimes the mental anguish is much more severe than any possible legal consequences.


How to Prepare for Your Big Summer Road Trip

If visions of the top down, and sun-kissed skin with wind-tousled hair are creeping into your daydreams, you know summer is upon is, and so are road trips. When the rubber hits the road, it's as though the American call of the wild has been unleashed, and freedom is ringing from all directions of the compass. Of course, a little planning never hurt anyone, which is why a little preparation and foresight on how insurance companies operate can make your road trip one for the books.

Before you hit the road, be sure to have your car checked out. Make sure you have the right oil, know your fluid levels, check the tires, and inspect the A/C. You should also have at least a gallon of water per person, basic tools and jumper cables, a tire pump, basic first aid, non-perishable food, a flashlight, and gloves—you never know when you may break down and have to sleep next to a giant cactus.

If you are traveling out of state, your home state insurance should be just fine in terms of coverage. If traveling to Canada or Mexico, speak with your agent for guidance. If you are involved in an accident, you will be held financially responsible for any property damages or injuries suffered by others. These should be covered by your liability insurance, and even though each state has different liability minimum limit requirements, these may be amended to whatever state you are in.

How to Prepare for Your Big Summer Road Trip

As most people who have dealt with insurance companies may know, accidents and repairs can turn, shall we say, difficult. If the at-fault driver's insurance company immediately accepts fault, they should pay for your rental car until you receive fair market value for your car, or pay for the complete repair of your car. If the insurance company does not accept immediate responsibility, a whole lot of indecision can occur, often placing the victim in limbo. If your insurance will cover it until the other driver's company gets the issue resolved, spectacular. You can keep enjoying your trip while your company fights the other for repayment.

The worst-case scenario is when the at-fault carrier denies responsibility or withholds making a decision when you need a rental car. You may have to front the cash for the rental car (which, a lot of people cannot afford), until the issue is resolved by them accepting responsibility and paying you back. The best thing you can do, is apply pressure to the at-fault company. Even better, enlisting a lawyer to assist you with this can be a tremendous help.