Boise Divorce Attorney Discusses Custody Across State Lines

As a Boise Divorce Attorney I often get calls from people who live in other jurisdictions and have been served Idaho divorce papers. Here's how the calls go.

"My wife left me with the kids 6 months ago and moved to Idaho. I have visited the kids in Idaho and I thought I was on good terms with my wife and now she just served me with divorce papers. I live in a different state and if we are going to get divorced I want the divorce to take place in my state."

Here's the problem. They generally have waited too long to get the divorce in their home state. What that means is they will have to have the divorce in Idaho. This is because once you have been in the State of Idaho for 6 weeks, Idaho has jurisdiction. This applies to the children in this case as well because in effect by not approaching your home court when your children were taken from your state and by voluntarily visiting your children in Idaho, you have submitted to Idaho jurisdiction for child custody.

This scenario, however, is different if the children are illegally taken from the state as in parental abduction cases. When you know your kids have moved with their mother and you visit them it shows a form of consent.

This isn't necessarily a bad thing, however. You can still get the divorce, you can still resolve child custody, get visitation etc. You, however, cannot make her come back to your state. As a Boise Divorce Attorney I think the main thing that is bad about this is if you aren't the primary physical custodian, visitation becomes a long distance visitation scenario which will be discussed in a subsequent blog.

Boise Divorce Attorney Gives Tips For Effecting Visitation Change

As a Boise Divorce Attorney I often see routine changes in visitation causing conflict and stress. My role as a counselor is to help ease the transition of visitation between households. A smooth transition helps the children involved in custody swaps and it helps the parents avoid conflict.

As a Boise Divorce Attorney the best tip I can offer is to be timely. If you are dropping off or picking up if everyone is on time there is one less thing to complain about. If something comes up, make certain you phone ahead and let the other parent know what has happened and when you will be there. An occasional tardy is understandable but my second tip
is to not let it become a habit.

As a Boise Divorce Attorney I often hear from clients how they get upset if one parent was supposed to bring clothes, school work or other necessary items for the custody swap. This can cause conflict by placing the other parent in a fix, especially if special clothes were requested or a homework assignment is due. Always be respectful of the other party and their situation. A divorce can create tremendous strain on all parties involved, but spite only serves to make the tension greater.

My fourth tip is to keep schedules unless absolutely unavoidable. If one party or the other is regularly changing how and when things are done, it can cause a great deal of resentment. Resentment leads to stress and further deterioration of your relationship with the other party.

As a Boise Divorce Attorney I offer these tips to help ease the routine swap in custody. Divorce is very difficult for children but when you maintain a consistent routine, you reduce stress and conflict and you are respectful to the other party your children will be less likely to suffer the consequences of divorce.

For more information concerning divorce and custody visit www.lawboiseid.com

Boise DUI Lawyer Talks About DUI Statistics

As a Boise DUI Lawyer I have spoken frequently about the increase in the number of DUI arrests around the holidays. Interestingly in today's Idaho Statesman, there was an article outlining the numbers for Idaho DUI arrests, crashes and fatalities. In addition, the article discussed the increase in the number of excessive DUI arrests. An excessive DUI is when the BAC of the individual is .20 or higher.

The statistics showed that the number of arrests for driving under the influence in Idaho have increased and the crashes and fatalities have decreased. In 2005 Boise Police and Idaho State Police arrested 9,072 people in Idaho for driving under the influence. There were 1,952 DUI crashes that year and 100 fatalities. By 2009 the number of DUI arrests had increased to 12,327. The number of crashes associated with driving under the influence decreased to 1,567 and the death rate decreased to 65.

While those number represent a decrease in accidents and deaths and an increase in arrests, something disturbing is on the rise. The statistics show that Boise Police and Idaho State Police are steadily increasing the number of individuals they arrest for excessive DUI. Boise Police and Idaho State Police arrested 279 individuals and cited them for excessive DUI in 2006 in Ada County. That number has increased to 384 to date and there are still two weeks of the year left.

As a Boise DUI Lawyer I walk that fine line of excessive DUI with my clients, particularly when they have blown barely a .20. The penalty for excessive DUI is so much greater than a regular driving under the influence charge. While I never condone drinking and driving, it is my responsibility as an Idaho Criminal Attorney to preserve an individual's rights. Because the statistics show that the calibration of breathylzers are not 100% accurate there is always that possibility that an individual arrested for excessive DUI may not have actually had .20 BAC. As a Idaho Criminal Attorney, I would not recommend that you not blow when you are pulled over, but when someone is so close to an excessive DUI a blood draw would give a more accurate BAC. As a Boise DUI Lawyer, I recommend that every excessive DUI charge be challenged at the very minimum on a calibration technicality. I want to stress again, however, that I am in no way advocating driving under the influence. My suggestion to challenge the excessive DUI comes from my role as a defender of your rights. My role as a Boise DUI Lawyer and an Idaho Criminal Attorney is to represent my clients in such a way that they are not convicted of a crime by false evidence or an illegal violation of their rights.

For more information concerning DUI in Idaho visit www.lawboiseid.com or call (208) 472-2383.

Boise DUI Lawyer Talks About Holiday DUI

As a Boise DUI Lawyer I see a rise in DUI this time of year. There are a couple of reasons for this. Obviously, the holidays bring more partying and the result is more intoxicated drivers on the roads in Idaho. The other reason is that the police in Idaho are more actively looking for intoxicated drivers. Along with an increase in DUI there is a corresponding increase in DWP. The reason for this is that once you receive a DUI you will have your license suspended. The number of repeat DUI also increases during the holiday. If you have previously had a DUI and you have a suspended license and you drive, if you are pulled over for any driving offense, you will get a DWP in addition to your DUI.

Play it safe and designate a driver. If you get a DUI or DWP, call the experts at Kershisnik Law, (208) 472-2383 or visit us on the web at www.lawboiseid.com

Boise Divorce Attorney Talks About Holiday Visitation

As a Boise Divorce Attorney I see people scrambling this time of year, trying to get into Court wanting to modify their holiday visitation schedule, trying to enforce a holiday visitation schedule or trying to establish temporary orders to set a holiday visitation schedule.

Proactive orders are always the best. Meaning, making certain the original divorce and child custody decree set forth specifically what the schedule will be and when and how it can differ. This, sadly, is not usually the case.

As a Boise Divorce Attorney I regularly see people whose ex won't abide by the divorce and child custody decree, or whose ex wants to take an extended vacation during their scheduled time. During the holiday season the closer it gets to Christmas or Thanksgiving the more difficult it is to get before a judge to make changes or to modify a decree.

If you anticipate there is going to be a problem or a change during the holidays it is much easier to get it done early, much like early Christmas shopping. If you wait till the day before, you might have to do your shopping after Christmas!

For more information concerning divorce, child custody, child support, modification and visitation please visit www.lawboiseid.com or www.divorceboiseid.com

Boise Divorce Attorney Discusses Considerations in Default Divorce

Default divorce can be a quick way to get in and out of the divorce court. As a Boise Divorce Attorney I regularly file divorce complaints where the party on the other side fails to respond. With a default divorce you get to take everything that you asked for because the other party did not make an effort to contest anything you put forward.

One important consideration when filing a divorce complaint where child custody will be determined is to always include child support worksheets and income verification when you file the complaint. If a divorce or child custody is contested you can always add those documents at a later point and often the judge will request them. If, however, you file for divorce and you take by default and you have not filed child support worksheets or income verifications, some judges will not allow you to set child support. If that is the case you must return to court and ask for child support to be set. You will not be barred from setting child support, you just will be required to take an additional step. Some judges will allow you, upon default, to set child support, but as a Boise Divorce Attorney I think the best route is to always have the child support worksheets and income verifications in the file to begin with.

For more information concerning divorce, child support and child custody visit www.lawboiseid.com

Boise Divorce Attorney Discusses Prenuptial Agreements

As a Boise Divorce Attorney people often ask me about the necessity of a prenuptial agreement. People often think that because Idaho is a community property state they might need a prenup in case they divorce. This is not necessarily the case. Even though Idaho is a community property state, it still recognizes separate property. Property and money you have acquired prior to marriage are your separate property and only become community property if you transmute (change the character by gifting the property) it.

Where a prenuptial agreement is helpful is if you have an large income source from employment, not from a trust or inheritance, and you feel that you would like to protect its character as separate property in case you divorce. You and your future spouse can make an agreement that your income will remain separate property and therefore anything you purchase with the money will also remain separate property.

For more information about divorce in Idaho visit www.lawboiseid.com

Boise Divorce Attorney Discusses Collaborative Divorce

As a Boise Divorce Attorney I have many people asking me about the benefits of collaborative divorce. While the idea of a collaborative divorce is appealing, is it really anything new?

Many divorce attorneys seeking to find their "niche" will tell you that this is the new, kinder and gentler divorce. Frankly, I don't see this as anything new. As a Boise Divorce Attorney who has practiced law for 17 years I can tell you that I have seen cases where people naturally get along better than others. It is in a situation like this where a collaborative divorce may "work".

The International Academy of Collaborative Divorce Professionals put forth a set of criteria to determine whether or not you might be a candidate for collaborative divorce. They consist of things like respect, placing your children first and self control. Divorce tends to be a highly emotional time. People who are in a divorce situation generally no longer get along, hence the need for the divorce in the first place. There are, however, those individuals who divorce and still get along, who still see each other regularly and who are still friends. This, however, is not the norm. For most people who are seeking a divorce, collaboration does not work because there is too much conflict.

I do not believe that the idea of a collaborative divorce is a bad thing, but I do not believe that is anything new. If you and your soon to be ex still get along you may be a candidate for collaborative divorce. If, on the contrary, you are like most people seeking a divorce collaboration is not a practical solution.

If you need more information concerning divorce please visit www.lawboiseid.com or www.divorceboiseid.com

Idaho Criminal Attorney Discusses Idaho Rape Statute Which Allowed Two Men to Go Free

Rape law in Idaho is governed by Idaho Code 18-6101. That statute, however, was unable to protect a woman who had been tricked into believing that she was having intercourse with her boyfriend.

On July 21, 2010 the victim, who had been drinking to the point of vomiting, was escorted to a bedroom by two men whom she had never met. The woman then proceeded to have intercourse from behind with her boyfriend. At some point later, the woman was approached again from behind and, thinking it was her boyfriend, began to have intercourse with the man. After a few moments she became suspicious and questioned whether the man having sexual relations with her was her boyfriend. She jumped up and turned on the light and discovered that the man was not her boyfriend.

The question is, was the woman raped? The Idaho rape law would protect the woman if she was so drunk that she could not give her consent or that her consent was invalid because she was drunk. The victim, however, never made any allegation that she was too drunk to consent. The victim did in fact consent but she thought she was consenting to her boyfriend.

Is there a rape law that protects against trickery? Yes, Idaho Code 18-6101(7). It says that, "Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female… where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.

This code section, however, could not protect the victim because she did not in fact think that the person she was having intercourse with was her husband, she thought that he was her boyfriend. The two men were not convicted of the crime of rape because of that technicality.

As an Idaho Criminal Attorney I can tell you that the Idaho Rape Statute has this and many other "holes" that allow for innocence based upon a technicality. For example, even though the Idaho Code says, "The essential guilt of rape consists in the outrage to the person and feelings of the female... and any sexual penetration, however slight, is sufficient to complete the crime" (ID Code 18-6103), it truly is not subjective like it purports to be. The Idaho Code defines rape as penetration by a penis. If the guilt of the crime is supposed to be subjective, as 18-6103 says it is, then having an object forced into a woman's vagina, mouth or anus should also be rape, if the victim feels that this violation is rape, but that, sadly, is not the case in Idaho. A woman can only be considered having been raped if a penis is used.

This Idaho Criminal Attorney thinks that these loop holes in the Idaho Rape Statute need to be fixed in order to protect and preserve the dignity of women and to prevent further injustice.

For more information about Idaho Criminal Law visit www.lawboiseid.com or call Kershisnik Law at (208) 472-2383 to speak with Idaho Criminal Attorney Pat Kershisnik about Idaho Criminal Law and crimes in Idaho.

DUI Alcohol and/or Drugs

The DUI used to be known as a DWI, but it was changed because you can be charged with driving under the influence of drugs. Although DWI also pertained to driving under the influence of drugs, it literally meant driving while intoxicated.

As an Idaho Criminal Attorney I often hear from people who are confused about this fact. They will get pulled over and sited with a DUI when they hadn't been drinking. Upon further questioning, they often will admit that they were under the influence of drugs.

Idaho Code 18-8004 states that it is unlawful for someone under the influence of alcohol, drugs or any other intoxicating substance to operate a motor vehicle. Even if your blood alcohol level is below .08 you can be cited with a DUI if you have drugs in your system.

If you have been charged with drunk driving or drugged driving or for more information about DUI and drug charges visit www.lawboiseid.com or www.duiboiseid.com

Idaho Criminal Attorney Discusses DUI Traffic Stop

Many people don't know what constitutes probable cause for a DUI traffic stop. As and Idaho criminal attorney I hear the statement, "the police had no reason to pull me over" all the time. Whether the the police can pull you over or not depends upon reasonable cause. The police must have reasonable suspicion based upon their own actual observation of a person's questionable or unusual behavior to make a traffic stop for DUI.

I have seen an Idaho criminal attorney or two try to argue that swerving within your lane, for example, is not probable cause as long as you don't cross the dotted lines because that is not a crime in Idaho, but this Idaho criminal attorney believes that trying your case based solely upon that as a defense is a sure way to lose. The police are trained and know the tell tale signs of drunk driving. That is not to say, however, that the police cannot be mistaken. If, for instance, you have a medical condition or you lost your shoe while driving, you may have swerved within your lane, but that does not change the fact that the police observed unusual driving behavior. This first stop sets the stage for the police to further determine whether or not you are a candidate for a DUI. The question to challenge the initial stop has to be did the police have probable cause? If they stop you, don't smell alcohol on your breath and find that you pass field sobriety tests, then you are free to go and no constitutional right has been violated.

There are many ways to challenge a DUI but unless you did absolutely nothing and you can show that, the police are trained to give the information they need to to show that they had probable cause for the initial traffic stop.

For more information concerning DUI in Idaho please visit, www.duiboiseid.com or www.lawboiseid.com

Child Custody and National Guard Service

As a Boise Divorce attorney I often advise clients about the criteria laid out in the Idaho Code as to how child custody in Idaho is determined and when and how it can be modified. A modification can be sought when there is a permanent and substantial material change in circumstance. An interesting exception to this modification rule exists and pertains to active members of the Idaho National Guard and military reservists.

The exception is this: When an active member of the Idaho National Guard is called to duty or when a military reservist is ordered to active federal service, this does not constitute a substantial or material and permanent change in circumstance. In other words, this is not a basis upon which to seek a modification of a child custody decree, either in terms of physical custody or visitation.

For information regarding divorce, child custody, modification and visitation in Idaho, please visit www.lawboiseid.com or www.divorceboiseid.com

Boise Divorce Attorney Discusses Child Custody and Father's Rights

As a Boise Divorce Attorney I have seen Child Custody change over the years. When I began to practice there was a definite preference for moms being the custodial parents. The premise was that women are more nurturing and "loving" because they are women. While there haven't been huge leaps away from this concept the idea that children can and do fare well with their fathers as custodial parents has moved to the forefront. Some Idaho judges actually use the Idaho Code criteria for placement of children and consider factors like stability as being a separate issue from the gender of the parent.

As a Boise Divorce Attorney I have seen this result in primary physical custody being placed with fathers rather than mothers. This, however, isn't the norm. If you have a mom who is really out there: a mom who does drugs or parties too hard and a dad who is mellow and law abiding and responsible you might end up with that dad as the custodial parent.

The general trend, however, still places young children with moms as the primary physical custodian. As the child gets older and begins school, this child custody arrangement often changes to shared physical custody as long as there is a fairly close proximity of the parents' households.

If you need more information about child custody from a Boise Divorce attorney please visit, www.lawboiseid.com or www.divorceboiseid.com

Boise Divorce Attorney Discusses Divorce in Boise

As a Boise divorce attorney I can tell you that there is a difference in a divorce in Boise and a divorce elsewhere in the state. You would think that because Idaho divorce law is the same throughout the state that the results and the process would be the same. But, it is not.

A Boise divorce takes considerably longer than in any other county in the state. This simply has to do with the amount of people in Ada County. A divorce in Canyon County, however, takes on average only 58 days to complete. A Boise divorce takes closer to 9 months.

Other issues that vary are child custody determinations. Child custody in Boise is a different animal than child custody in Canyon County. Canyon county judges rely on home studies to help them make child custody determinations, whereas Ada County judges do not.

Property valuations also vary county by county. Some judges will allow bankruptcy values or tax assessment values as credible evidence. In general in a Boise divorce, you will not get the same acceptance of that evidence.

Who qualifies as an expert also varies throughout the state. Some counties will allow expert testimony from those whom this Boise Divorce Attorney considers less than expert. Other counties require actual expert credentials.

While some of these issues can be chalked up to different judges' personalities, not all differences are because of that. Local rules often dictate how evidence is allowed in and what evidence will be heard and what time frames things will be done in.

As a Boise divorce attorney I would say it is not necessarily that one county is better than another, but there are differences that effect the outcome of a divorce in Boise vs the outcome of a divorce in Canyon County.

For more information on divorce in Idaho visit www.lawboiseid.com or www.divorceboiseid.com

Idaho Criminal Attorney - DUI Challenges - Breathalyzer Accuracy

According to David J. Hanson, Ph.D, 23% of those people who take a breathalyzer test end up with inaccurate results. Not only are the test results inaccurate but the Blood Alcohol Concentration register about 15% higher than they actually are.

What does this mean for someone charged with a DUI? As an Idaho Criminal Attorney I can tell you it can mean a huge difference. If you are at that fine line just below or just above legally drunk (BAC of .08 or greater) it can mean the difference between a DUI and a inattentive or reckless driving charge. If you are at that line between an excessive DUI (BAC of .20 or higher) and a standard DUI it can make the difference between prison and jail, not to mention much longer license suspensions and greater fine amount.

So how do you challenge a breathalyzer? There are many arguments that can be made depending upon the evidence in the possession of the police and the prosecutor. Some challenges require an expert. The example I gave above about inaccurate results would require an expert to testify about the validity of breathalyzer results. Some examples of successful challenges of the evidence that I have made as an Idaho Criminal Attorney challenging DUI charges against my clients are:
- The breathalyzer was not properly maintained; failure to calibrate or clean
- The police administered the test incorrectly; failure to warm up machine
- The officer was improperly trained or qualified
- The result was affected by a characteristic of the driver such as asthma,
burping, hyperventilation
- The test was administered after the driver used mouthwash, a strong breath mint or used lip balm or oil
- The driver was in the presence of paint, gasoline, varnish or other strong fumes

This evidence won't necessarily relieve you of your DUI charge or subsequent conviction. This is because the police use more evidence than just the breathalyzer to evaluate whether you have been driving under the influence. Field sobriety tests, for example, are supposed to be the criteria which the police use to determine if they need to administer a breathalyzer test. These types of challenges, however, can be useful in lessening the extent of the penalty and potentially the charge against you.

For more information concerning DUI, driving under the influence, please visit www.lawboiseid.com

Military Divorce, Child Custody and Child Support Issues - Important Consideration for a Boise Divorce Attorney

As a practicing Boise Divorce Attorney it is important to keep up on changes in the law in relation to Divorce, Child Custody and Child Support issues in relation to military divorce.

For both active and non-active members of the military, the military pension is a good example of repeated change in divorce law. The law has gone back and forth on this issue. At certain times the military pension was regarded as a non- community property asset. That changed giving military spouses a community property interest in the other party's pension.

In 1982 the Uniformed Services Former Spouses' Protection Act limiting the amount of the member’s retired pay which can be paid to a former spouse to 50% of the member’s disposable retired pay (gross retired pay less authorized deductions. It also required that the parties must have been married for at least 10 years while the member performed at least 10 years of active duty service before a division of retired pay is enforceable and it specified how an award of military retired pay must be expressed. In addition it required that the former spouse actually take the step to actually submit a copy of the divorce decree and order for division of military retirement within 90 days in order for the request to be processed.

As a Boise Divorce Attorney who has done military divorces, I have personally experienced the various difference between a military and a civilian divorce. A few examples of the difference are: An active member of the military must be served with the divorce complaint personally. Also, an active member of the military has the option of asking, and it is in the Idaho court's discretion to grant it, that the proceedings be delayed for the entire term of the military personnel's duty and for up to 60 days thereafter.

As a Boise Divorce Attorney, I have seen the differences in child custody and child support as they relate to military divorce as well. Child support cannot exceed 60% of the service person's pay and allowances. The same goes for spousal support. As far as child custody in a military divorce, the courts must look heavily at the consistency and stability element of child custody determination because of the possibility of the military move. This often translates into longer summer visitation rather than frequent weekly visitation depending upon where the non-custodial parent resides.

If you have military divorce issues it is important to find a Boise Divorce attorney who knows the ins and outs of military divorce. For more information on divorce, please visit www.lawboiseid.com and www.divorceboiseid.com where you can find detailed information on divorce as well as contact information.

Boise Divorce Attorney Discusses Child Custody in Ada v Canyon County

As a Boise Divorce Attorney I have seen the law concerning child custody change over the years and in various venues.

It used to be that in Boise and Ada County judges would use home studies to determine child custody issues. The fitness of the respective parties was determined by the use of this tool. The divorce lawyers would get together and choose one of a handful of psychologists who would then put the parties through a series of tests and questions and then make a recommendation as to who should have primary physical child custody and what type of visitation should be allowed.

I have been a Boise Divorce Attorney for 17 years and I can't tell you how that process often made me cringe. You just never really knew what the result would be. Well, in Ada County the judges have decided that that method of determination isn't exactly full-proof and have opted to make child custody determinations differently.

Child custody issues in Canyon County, however, are still highly influenced by the use of home studies. The judges there still believe that these tools are a useful and effective way to determine who should have primary physical custody.

Some of the tests that these psychologists use in influencing judicial decisions concerning child custody issues are personality and IQ tests. They also look at the home and relationships of the parents who are in the middle of divorce. These evaluations are really not hugely different from the criteria that divorce judges in Ada County use to determine child custody. The benefit of the home study is that there is a trained individual who evaluates relevant issues through actually investigation rather than relying on a judge to wade through the evidence provided through the divorce clients or their attorneys.

For more information concerning and child custody in Boise and the surrounding areas visit lawboiseid.com and Kershisnik Law's new growing website, divorceboiseid.com dedicated to divorce, child custody and other family law issues in Idaho

Idaho Criminal Attorney Discusses DUI

Years and years ago just after prohibition had been repealed a new product came out onto the market. It was known as Geritol. Geritol promised a new vibrancy for beleaguered housewives and those frazzled business men; more energy, more stamina, more gusto. While some called it "snake oil", Geritol was so popular because those people who used it knew it worked. Well it turns out that the original Geritol did work. It worked so well because it contained alcohol so, yes indeed, those aggravated souls were more relaxed and depending upon how much they used, they lost their inhibitions. They thought it was harmless. They thought it was medicinal.

As an Idaho Criminal Attorney I can tell you that in criminal law cases today we are witnessing many similarities to Geritol use which is rapidly turning into everyone's nightmare; DUI. The Mojito or the glass of red wine is the modern day Geritol. We relax after work with our beverage of choice, which is fine, but many people think that that one or two Mojitos or one or two glasses of wine aren't enough to impair their driving.

Then it happens, you return from an evening of Mojitos and relaxing company with friends and you get pulled over. Now what?

DUI in Idaho carries the following penalties for a first time offense:
- Up to a $1000 fine
- Anywhere from 2 days to 6 months in jail
- up to a 180 day license suspension with 30 days of that being absolute and
with the remaining suspension being restricted
- An alcohol evaluation
- Victim's panel
- Up to 2 years probation

DUI is a serious offense. There are actually two license suspensions involved with a DUI. Your driving privileges will be suspended not only if you are convicted of a DUI (suspended by the court) but also upon your arrest (by the Department of Transportation). You have 7 days from the date of your arrest to request an administrative hearing with the Idaho Department of Transportation if you wish to challenge this license suspension. If you don't do this or if you lose at the hearing your license will be suspended for 90 days. If you are convicted of a DUI you will get an additional 90 day license suspension. In Ada and Canyon Counties the court will allow these suspensions to run concurrently. You can also petition the court for a restricted license after the first 30 days of your license suspension.

As an Idaho Criminal Attorney I see people miss this deadline all of the time. While you may not prevail (usually because of the extent of the evidence against you), why would you not want to take the option to challenge your license suspension?

Just remember, DUI can happen to anyone. Just like the Geritol took people by surprise because of its alcohol content, medicinal Mojito drinkers could get the same surprise.

For more information about DUI and Criminal Law please visit us on the web at www.lawboiseid.com

Boise Divorce Attorney Discusses Co-Habitation and its Effect on Property Division, Child Custody and Child Support

As a Boise Divorce Attorney I have seen the law concerning co-habitation change over the years. It used to be that you could decide to live together and share your property and debt and thereby create a common law marriage. Idaho no longer recognizes common law marriage, except that if you formed a common law marriage before January 1, 1996 your marriage is grandfathered in and you are considered married.

I know many an Idaho Lawyer who has been approached by a client who asks, "So what happens if I began living together after January 1, 1996 and my ex and I had a child together and then we decide to split? Well, first of all the issues of child custody and child support pretty much remain the same, whether you were married or not. Child custody will be determined by the factors outlined in the Idaho Code and child support will be set by the Idaho Child Support Guidelines with mandatory withholding and Idaho employment law implications as discussed in a previous blog.

The real question is what happens to the property and the debt. If you were married the property and debt would follow community property laws, but if you were never married community property laws do no apply. The purchase and ownership of the property will be treated as a contractual relationship. Since you probably did not sign any agreement as to how the property would be split if you split, you have to look at the surrounding circumstances. Has one party paid more than the other, thereby giving them a greater interest in the property? Has one party always paid more or have they done so just recently? Was the property purchased as income property or was it purchased for private use? What kind of funds were used to purchase the property? Did the parties take out a loan? Who signed the loan documents? The issues as to whose property it will become would be the same as if two business partners purchased property together. And, of course, even if you split up, you can remain co-owners of the property and never divide it. However, the most likely thing that will occur if you both have paid and used the property is that one party will buy the other party out.

As far as the debt is concerned, you would look to who is obligated on the note. If both parties are, then both parties will remain until it is paid off or one party buys the other out.

Co-habitation sets up some interesting questions as to property and debt issues when there is no marriage to kick in community property laws. But remember, whenever you have a child, child custody and child support are not affected by the lack of marriage. As a Boise Divorce Attorney I see many people who wish they could use those community property laws because it makes the division of property much easier.

For more information concerning divorce, child custody, child support and Idaho employment law as it relates to child support in Idaho please visit www.lawboiseid.com

Employment Law Issues - Workplace Discrimination and Sex Discrimination Harassment

Workplace discrimination can come in many forms. In today's employment law blog I will be discussing sex discrimination harassment. This type of discrimination is different from sexual harassment. For a sexual harassment suit you must show that there are advances of a sexual nature and that those advances are unwanted. Sex discrimination harassment can include sexual harassment but does not have to in order to file suit.

In Employment Law terms, sex discrimination harassment occurs when a hostile work environment is created. For example, if you are a female and your boss or co-worker regularly makes offensive remarks about your gender, women in general, your particular female characteristics or about organizations that are primarily female organizations so frequently or severe that your place of work becomes noxious, you may have a basis to file a suit. Also, an office policy that applies to both genders can cause discrimination if it has a negative impact on one sex and it is not necessary for the operation of the business. The harassment, however, cannot be isolated or infrequent and cannot be simple teasing.

Of course, sex discrimination harassment does not only protect women. It protects men as well. It also applies whether the harasser is male or female and whether the harassment comes from a supervisor, a co-worker, or even a client of the company.

Employment law remedies for sex discrimination harassment are in place to put the employee back in a position they would have been had the discrimination not occurred. This could be reinstatement, raise or promotion. But it doesn't necessarily stop there. Remedies may also include compensatory or punitive damages. Compensatory damages may be awarded for out of pocket expenses such as those incurred looking for a new job or to compensate for emotional distress caused by the discrimination. Punitive damages are awarded when the employer has been especially malicious in their treatment of the employee.

There are caps placed upon compensatory and punitive damages based upon the number of employees in the company and those are as follows:

* For employers with 15-100 employees, the limit is $50,000.
* For employers with 101-200 employees, the limit is $100,000.
* For employers with 201-500 employees, the limit is $200,000.
* For employers with more than 500 employees, the limit is $300,000.

Personal Injury Attorney in Boise ID Discusses Slip and Fall, Car Accident and Negligence - Helpful Tips When You Have Been Injured

As a Boise Personal Injury Attorney I have seen many valid personal injury claims in Idaho be denied or reduced because a trusting individual was told by an insurance company to sign a document that they didn't understand. That is right, the insurance companies are NOT on your side.

The first and most important thing to do if you have had a slip and fall, been in a car accident or have been injured because of the negligence of another, is DO NOT sign anything before seeking the counsel of a personal injury attorney. In a perfect world, that wouldn't be necessary, but we don't live in a perfect world and the insurance companies don't want to pay anymore than they have to. Your medical bills, your wage claim and your pain and suffering are monetary damages that you are entitled to and you don't want those reduced because the adjuster sounded so nice.

This is not to say that you shouldn't be considerate to the insurance company adjuster. Their employment is dependent upon them not giving out too big of claims too often. If you have been injured in a slip and fall, in an accident or by the negligence of another and you know that you are in pain and that they are responsible, there is no need to get angry with the insurance company. They need to listen to you and your concerns. This is where it is handy to have a personal injury attorney because then you don't have to deal with them; you don't need to worry about saying something wrong or giving too much information.

Another very important thing to keep in mind if you have been injured in a car accident, had a slip and fall or have been injured because of the negligence of another, is don't minimize your pain to seem brave or so as not to make a scene. Also, don't deny medical attention. You need to be checked out so an injury isn't overlooked or attributed to something else. It is also very important to follow your doctor's orders so that the insurance companies can't claim that your injury was exacerbated by you failing to do what was ordered.

As always, you should document everything because our memories fail but also so you will have an immediate record of what has occurred. Keep with it all the names and addresses of any witnesses and photographs that you may have.

These tips will help you get through the legal ordeal of a slip and fall, a car accident or an injury caused by the negligence of another. You have rights and no one should take away or minimize your monetary award for a personal injury including doctors' bills, a wage claim or pain and suffering.

Boise Divorce Attorney Discusses Child Support Mandatory Withholding in Child Custody Cases and Related Employment Law Issues

As a Boise Divorce Attorney I am regularly greeted with a groan when I tell my clients that in their child custody cases they will be ordered to have mandatory withholding of their child support obligation.

The legislature required that child support be automatically withheld because there are a significant number of people who owe child support and do not pay it. Because every parent has an obligation to provide for the care and support of their child, the legislature found that automatic withholding was an effective remedy for non-payment.

In all child custody cases the court orders automatic withholding of child support unless it can be shown that it is not in the best interest of the child. Good luck proving that! If a child custody case has been heard and an order issued but no automatic withholding was ordered, if that child support obligation becomes delinquent the court can and will go back and order automatic withholding.

An employer must obey the order to withhold the child support and if they do not they are subject to a $300 fine per each violation. One wouldn't necessarily think that there would be employment law issues in regard to child support, however, employment lawyers in Boise ID will tell you that is not the case.

If an employer fires you or refuses to employ you because you have a child custody order which requires that your child support be automatically withheld, employment law kicks in and punishes the employer. You can file an employment law claim against your employer and receive two times the salary your employer owes you plus attorneys fees. Employment lawyers in Boise ID will tell you that is a pretty good deal.

Boise Divorce Attorney Discusses What To Expect if a Protection Order Has Been Filed Against You in a Child Custody Case in Idaho.

While the importance of a protection order cannot be emphasized enough, sometimes in high conflict divorce and child custody cases a parent will file a protection order against the other parent claiming physical abuse or neglect. As a Boise Divorce attorney I often see this done as a tactic to prevent one parent from getting a fair child custody determination. In Idaho the protection order is heard outside the divorce court at a special protection proceeding.
If you find yourself in this situation you need to act fast. In Idaho the consequences of blowing off a child protection hearing are huge and can have lasting effects on your child custody rights. You have a small window of time to get all the necessary paperwork filed and to the court and you MUST show up at the evidentiary hearing. This is your opportunity to cross examine the party claiming abuse or neglect and employees of the state authorized child welfare office, CARES. If you want to cross examine the witnesses, which you almost always have to do, you need to file a 24 hour notice with the court of your intent to do so. This is where you need the help of an experienced Boise Divorce Attorney, because you cannot afford to mess this up.
Child custody in Idaho should be should be determined fairly and in accordance with the best interest of the child. When child custody is falsely taken out of the divorce court no one wins.

For more information concerning divorce, child custody and child support, contact Boise Divorce Attorney, Patrick Kershisnik at (208)472-2383 or visit his him on the web at
http://www.lawboiseid.com

Idaho Employment Law - Reasonable Accomodation

As an Employment Lawyer in Boise ID I regularly get calls about disabilities and reasonable accommodation in the workplace. Federal Law requires that all federal, state and local government employers, all private business with 15 or more employees and all church related offices with 15 or more employees comply with the Americans with Disabilities Act (ADA). The ADA states that when a disability exists in an employee the employer must make reasonable accommodations for the disabled individual. The only time an employer does not have to follow this requirement is if the accommodation is burdensome upon the business financially or the accommodation would change the nature and the character of the particular service.

Having practiced employment law in Boise ID for 17 years, I have seen many situations where miscommunication has led to either the employee being unable to prevail on a disability complaint or charges being brought against an employer. On the employee's side, communication of the disability is critical to the success of your claim against an employer. On the employer's side, once a disability is communicated, it is critical that it is determined what reasonable accommodation means to that particular employee. As an Employment Lawyer in Boise ID, I would advise both employees and employers to be very clear about what the disability is and what accommodation is reasonable.

Firstly, once a disability is communicated, the employer cannot simply presume they know what the accommodation should be. They should communicate with the employee as to what would enable them to do the job and to participate so that their handicap does not prevent them from doing their job. If relevant, they should also request that the employee contact their physician and have their input considered as well.

Secondly, what is reasonable accommodation according to the ADA? Certain accommodations are obvious, such as wheel chair ramps, handicap accessible office space and automatic door openers. If your disability is not obvious, the accommodation may also not be obvious. The ADA requires that the accommodation be reasonable in a subjective sense. So, for example, if you have an employee that has arthritis and is a cashier, you may have to provide them with a chair or provide them with different job responsibilities.

Employment law has come a long way in protecting the individual and allowing all people to participate in daily activities and employment. For more information about the ADA and the EEOC please visit http://www.lawboiseid.com or http://www.kershisniklaw.com

Boise Divorce Attorney Discusses How Child Custody is Determined

I'm sure you have heard friends talk about their divorces and how they couldn't tell what was going on as far a child custody. As a Boise Divorce Attorney I can tell you that child custody isn't determined on the whim of the judge. There is a very specific set of circumstances that are evaluated to determine the "best interest" of a child. Idaho Code section 32-717 outlines these factors. It states that the court shall consider all relevant factors in a child custody determination including the ones it outlines.

Firstly, the court is directed to consider the wishes of the parents as to custody. Very rarely are parents in agreement on what that arrangement should be. This is why the court doesn't stop there. The second factor is the wishes of the child or children. This is an option that is addressed primarily when the children are older. A child under seven is very rarely able to express with a degree of certainty which parent they would like to spend the majority of their time with. A child of this age doesn't understand permanence in a way that they can actually add valuable input for the judge. A related factor is the character and the circumstances of all the individuals involved. It used to be that it was thought that the best interest of the child meant to be placed with the mother because mothers are more sensitive and caring toward children. The court in the passed 25 years has acknowledged that it is not unheard of for fathers to be more stable, have better character and in a better set of circumstances to parent the children. The best interest idea shifted because courts began to look at this specific criteria.

Beyond the wishes of the parties and the children, to determine child custody the judge will look at the interaction of the parties with each other, the children and any siblings. The court looks at these to determine if the children will be placed together with specific parents or if they will alternate. Children's relationships with their siblings are very important and if they have a strong bond with each other the court does not want to disturb this. This also applies with step siblings. The court will look at the visitation schedules of step siblings where there is a very strong bond between step siblings to ensure that their time together is not disrupted.

The fourth and fifth factors go hand in hand. The court will look at the child's adjustment to his or her home, school and community and from there the court will seek to promote this continuity and stability for the child. Divorce disrupts a child's life and so this is a critical factor. Parents often move after divorce, the children change schools and even communities. If one parent resides in the family home and the children can remain in their historical schools and communities the court will weigh this very heavily as to maintain the stability.

The court will also look at any record of domestic violence. This, can rise to the level where it is a superseding factor. If one parent lives in the family home where the stability of the child may be maintained but is or has been abusive to the other parent, the abuse will be considered a factor against the offending parent. One thing to keep in mind, however, as a Boise Divorce Attorney I often see the domestic violence card played and often it is played as a tactic against the other party. I am in no way belittling the importance of filing dv when it is necessary, I just want to point out that it can be used as an attempt to cloud the court's opinion.

As a Boise Divorce attorney I have seen another tactic that divorcing parents often will try to use against each other; parties will claim that one parent is disabled and therefore they are unfit to parent. The Idaho Code has specifically addressed this and has stated that a disability in and of itself will not render a parent unfit. It states that the parent will be evaluated taking into account how they might parent considering how they themselves have adapted with their disability.

Child custody in Idaho is specifically based upon the best interest of the child. The best interest, however, is not based upon the whim of a judge. With the help of the above outlined factors a judge will make his or her decision. The judges can and do weigh other factors, when presented to them, if they believe that they will have an impact on the best interest of the child. However, unless the parties agree, rarely is anyone completely satisfied with the results.

An Idaho Criminal Attorney Discusses Background Checks

As an Idaho Criminal Attorney I often have to do background checks. Some checks are routine, while others require that I do a little digging. I sometimes even have to pay for the search. If an Idaho Criminal Attorney has to pay, do you? You bet.

I am sure you understand why an Idaho Criminal Attorney would need to look into someone's background, but is there ever a reason for Joe Q. Public to look into someone's background? Absolutely! If you are a landlord, for example, you may want to know if your potential tenant is a criminal. If you are an employer you may also need to look into your potential employee's background. And, let's face it - sometimes we are just curious what our friends or acquaintances have been up to.

Free searches are available at https://www.idcourts.us/repository/start.do Here you will have the same access as I, an Idaho Criminal Attorney, have. You can also run searches on property online at the Ada County Assessor's Office website. However, if you want to know who owns the property, you will have to go to the Ada County Courthouse and stand in line with the other people who look like an Idaho Criminal Attorney. At this same computer, you can find all sorts of criminal background on individuals for free. The worst part is that you have to go to the courthouse, find the computer and hide your shock and amazement! You can also check archived editions of various local papers at your local library.

You can also do name checks and finger print checks and with the Idaho State Police. In 1993 Congress passed the National Child Protections Act. This Act law allow qualifying entities to submit fingerprint cards on individuals who will be working with children. In 1994 the Act was amended to include the elderly and those with disabilities. You can get the forms necessary to do these three types of searches by visiting http://www.isp.idaho.gov/identification/PublicAccessToCriminalHistoryRecordInformation_000.html Name and fingerprint searches cost $10/search. I think it is funny that the State Police website reminds us that criminals often use aliases!

Of course there are all sorts of online programs that offer "free" searches, such as pipl.com. While these might get you some information, they always just whet your appetite and want you to pay for a "full" search.

Take it from this Idaho Criminal Attorney, there is lots of information out there. Finding might take some time, but it is always amazing and/or shocking what you find. Happy searching.

Boise Divorce Attorney Discusses Managing the Stressful Effects of Divorce on Children

The divorce rate in the United States sits firmly at 50%. While any divorce is stressful, a divorce can be particularly traumatic when children are involved. Research shows that children who are in the middle of a high conflict divorce may suffer from anxiety, depression, substance abuse, poor school performance and low self-esteem. No parent wants to harm their child but often the pressure both parents are experiencing during a divorce translates into extreme stress for their children.

As a Boise Divorce Attorney I have seen full grown adults lose their dignity and self-respect during contentious divorce litigation. I have often wondered why the adults can't see past their own issues and see what they are doing to their children. My perspective isn't one of being overly critical of these people, it is an outsider's perspective which, in order to be an effective divorce attorney, I must seek to understand. As a Boise Divorce Attorney, in order to help my clients and their children, I must seek to understand how two people who once loved each other, now cannot stand each other; and how two people who love their children can put their kids in these terribly stressful situations. As part of my job as a divorce attorney I need to help my client, and hopefully through example, help the other party, resolve their divorce as amicably as possible. If not for my client's self-preservation, for their children's.

The most difficult aspect of being a divorce attorney is seeing the conflict that effects the children of divorce. I strive to help my clients through this and to find ways to intervene. In Ada County, judges require that parents go to mediation, and as a Boise Divorce Attorney I routinely send my clients through it, with mixed results. I have had some success explaining to my clients that it is better for them and their soon to be ex's to work out a parenting plan on their own instead of having a plan that doesn't work or a plan that is forced upon them by the court. I have also had some success explaining the statistics about the effects of divorce on kids to my clients and encouraging them not to put their kids in the middle. I have also had success sending my clients to parenting classes.

I have heard of Boise divorce attorneys setting up third-party custody transfers but I find these too harsh and unrealistic. These people will eventually need to learn to co-parent and I see it as a crutch.

As a Boise divorce attorney I strive to understand this issue in order to help my clients. It would be a fine day in Idaho when the Court would develop a highly effective way of managing the stressful effects of divorce on children.

Idaho Employment Law and Small Business DOL Requirements

Federal law requires that employers post specific government posters concerning workers rights. In Idaho the required posters include equal employment opportunity, Idaho minimum wage law, OSHA job safety, employee polygraph protection, family and medical leave act, Idaho unemployment benefits, discrimination and military family leave. There are potential penalties, citations and/or sanctions for failure to post.

Not all businesses and industries are obligated by all workplace laws, however, and therefore are exempted from certain postings. For example, small businesses with fewer than 50 employees are not covered in the family and medical leave act and as such need not post state and federal guidelines concerning the act (but don't confuse your obligations under workers comp laws with FMLA). If, however, you have employees you must pay minimum wage (with a few exceptions) and you therefore need to display your appropriate poster.

Idaho Employment Law

Idaho Employment Outlook Still Grim:

Idaho's jobless rate increased by a tenth of a percentage point in August reaching 8.9%. Despite the Federal Government's continued extension of unemployment payments, many Idahoans have dropped out of the job search. The number of people in Idaho working or seeking worked dropped to 756,000. Although the private sector added 1000 new jobs allowing new hires to increase to 13,000 for only the second time this year, the jobless ratio (the ratio of unemployed to jobs) still sits at 7 unemployed workers to 2 job openings.

This economic environment is one where you should question "why was I fired?" or "was I discriminated against during the hiring process?" No one can afford to lose their job or not be hired now.

High Risk Application or Interview Questions

Because of the condition of the economy there aren't a lot of jobs out there. This translates into more law suits based on discrimination. More people will file discrimination law suits or file complaints alleging that they weren't hired because of discrimination. Employers, it is important to remember that you can violate Anti-Discrimination laws before you ever hire an employee.

In 1981 the EEOC determined that there was such a thing as "pre-employment discrimination". It determined that there were "high risk" questions that employers should never ask, unless of course the question is related to business necessity. And if the question is related to business necessity, you better make darn certain that there is no reasonable accommodation that you can make and that it is critical to the functioning of your business.

Here's the high risk list:

Never ask:
A person's height and weight
If a woman is pregant
A person's marital status
The number of children a person has
Child care arrangements
Primary language or proficiency in English
Educational limits, obviously unless it is critical to the job
Arrest or conviction records
Type of discharge from military service
Age
Citizenship
Economic status
Availability for weekends or holidays (you might meet religious discrimination)

And it is also a good idea not to ask employment candidates to list injuries, handicaps or disabilities.

Menatally Incompetent Illegals Get ACLU Support in Court

Late last night the ACLU filed a law suit in LA on behalf of mentally incompetent illegals.

The suit claims that the US Government, in particular the Department of Homeland Security, has failed to identify mentally incompetent illegals and because of their failure their civil liberties have been violated, with one specific detainee having languished in prison for 5 years. The suit filed in US District Court seeks to force Homeland Security to develop a system for identifying mentally incompetent individuals and to require that they are assigned counsel. Currently this group of individuals is afforded these rights but they are often overlooked because there is no system in place to identify them, particularly the indigent.

In 2008 the Division of Immigration Health Services sited up to 5% or nearly 19,000 illegals, were suffering from mental illness.

For more information on immigration visit www.lawboiseid.com or www.kershisniklaw.com

VA to Clarify Guidelines Concerning Medical Marijuana

July 24, 2010 - Select VA's to Allow Medical Marijuana -

Doctors at Veterans Administration hospitals around the U.S. currently are allowed to deny prescriptions for pain medications if their patients are taking illegal drugs. That is set to change this week when those federal guidelines will be modified. The clarifications will state that in those 14 states where medical marijuana is legal, VA doctors cannot deny pain medicine prescriptions on the basis of marijuana use if that use is for valid medicinal purposes. In addition, the VA cannot use the fact of marijuana use as a potential reason to deny Veterans benefits. The possibility of the VA being able to deny benefits to Veterans based upon medical marijuana use has been a concern for Veterans' advocates. The change in guidelines, however, will not allow VA physicians to prescribe medical marijuana. http://www.aolnews.com/nation/article/medical-marijuana-to-be-ok-in-some-va-clinics/19567275

BP and Toyota Arguments in Boise

You can get in on some pretty intense legal issues being heard by a Federal Panel in Boise on July 29 at 9:30 a.m.. This doesn't happen everyday. The United States Judicial Panel on Multidistrict Litigation, known as the MDL Panel will be convening in Boise soon.

The Courthouse will open at 6:30 a.m. to get everyone situated. Seating is very limited so good luck finding a good spot.

The Chief Justice of the Supreme Court has appointed seven sitting federal judges to sit on the panel. The purpose of the panel is to determine if certain civil actions pending in separate federal districts involve common questions of fact to consolidate the matters and get rid of duplicitous actions and to select the court and the judges to preside over the proceedings.

The following is a list of some of the cases being argued in Boise. BP, Toyota Anti-Lock Braking, Transition Lenses Anti-Trust Litigation, JP Morgan Fair Labor Standards, H & R Block Wage and Employment Practices, Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, and Google Interception of Electronic Communications.

How Much Does it Cost to Defend a DUI

So you had a blast this weekend but you ended up getting a DUI. Now what?

First and foremost you need a lawyer. You stand to lose so much with a DUI conviction that you need an experienced attorney on your side.

That having been said, do you take a plea agreement or do you fight the DUI charges? That all depends upon the circumstances. Are you guilty? Well, that also depends upon the circumstances. There are many ways to fight a DUI and some of those may be available to you if you don't want a DUI conviction on your record.

If you got caught red-handed then perhaps you should take a plea agreement and get in and out quick.

How much will this cost you? Most DUI plea agreements can be settled for $750-$1000 for a first time offense and $1000-$1500 for a second time or an excessive DUI charge. In addition to your attorney's fees you will have costs associated with your time in court.

If you want to fight the DUI charge; say the policeman forgot to read you your rights, or you think that the breathalyser was improperly calibrated, you will need to put down a retainer with your attorney. This generally costs between $3000-$5000.

Whatever you decide to do, you need to get an attorney who knows what to do for you. There are critical deadlines that you can't afford to miss.

The person you need on your side is Pat Kershisnik at Kershisnik Law. He has handled numerous DUIs and can help you get out of the fix you are in. Call today for a free consultation. 208-947-5518 or visit www.lawboiseid.com You will be glad you did.