Louisiana Recent Legal Answers from Lawyers

The quickest and easiest method under Louisiana law, though also the easiest to undo, is to have your mother sign a temporary guardianship of your sister over to you. Mind you, this may not be valid or enforceable under California or Oregon law.  A temporary guardianship can simply be a written statement signed by your mother stating that she is granting you temporary custody of your sister. Though a temporary guardianship is revocable at will, so if your mother changed her mind then any rights to guardianship that you would hold would be immediately revoked. The other issue to contend with is that you would need to get your sister back to Louisiana after getting that temporary guardianship signed over to you. Once she is in the jurisdiction of a Louisiana Court, and you have reason to believe that an imminent harm to your sister exists, you can petition the court for emergency custody based on that reasonable fear. The court would then set a hearing date to determine whether or not a permanent custody arrangement needs to be made. If you have any questions regarding this issue, please feel free to contact my office at 337-237-0492 so that we can discuss how to resolve your concerns.  ... Read Answer

You do not write whether any of the estates have been probated (proven in court).  They must be.  Then the house will pass according to the Will of the son to whom the father left his assets (or, if he had no Will, according to the Louisiana laws of succession).  Those people may gift or sell the house to you.... Read Answer

If he plead or was found guilty of the charge of "domestic abuse battery," as well as specific battery offenses against a dating partner, Louisiana Revised Statute § 14:95.10 would prohibit him from possessing firearms for a period of ten years after the completion of his sentence, probation, and/or parole. Furthermore, federal law also prohibits the purchase and possession of firearms and ammunition by certain convicted domestic abusers. With his probation only just completed in 2018, he would be precluded from owning or possessing a firearm until 2028 at the earliest. Violation of that statute could result in him being imprisoned with or without hard labor for between one and five years and be fined between five hundred dollars and one thousand dollars.  ... Read Answer

Hello Jennifer, The short answer is sometimes. It depends upon the jurisdiction that the charges are brought in, the drugs involved, how much of the schedule II he had in his possession at the time of the arrest, and who the prosecutor is and whether they are looking to just plea it out or try to make an example of him. The marijuana possession is a misdemeanor and very rarely results in prison time unless there is some prior criminal history. Regarding the Schedule II intent to distribute, that is a felony charge and will depend upon the type of drug and in what quantity. Cocaine and methamphetamine are dealt with much more harshly than drugs like marijuana and Xanax. Where I practice first-time felony marijuana offenders, and even those caught with small amounts of harder drugs, often get off with a plea to a reduced charge and supervised probation. Sometimes, where the prosecutor isn’t in the mood to budge, I can negotiate a compromise that the client goes to drug court where the court will monitor their progress. It all really hinges on the amount that he was found to have. If the amount of schedule II in his possession was just over the statutory threshold to warrant the intent to distribute charge, then there is a greater chance that a plea deal or reduction can be negotiated. But if the amount in his possession was far in excess and the state thinks he’s dealing, it will usually demand some prison time. Even in such cases, a deal may be reached possibly including drug court, supervised probation, and maybe serving any sentence under home incarceration, which can allow him to continue to work and earn a living just under the supervision of the Court. If your loved one has been arrested and/or formally charged with possession with intent to distribute, it is very important that he obtain legal representation to protect his rights. He should not answer any more questions from law enforcement without an attorney present. If you or your loved one would like to set up a free consult with me regarding this issue, please call my office at (337)237-0492 so that we can discuss what can be done.... Read Answer

I'm so sorry to hear about your fiancee's predicament. Sadly, the Louisiana public defender's offices are woefully underfunded and understaffed, which can lead to some poor outcomes when the court-appointed attorneys become overwhelmed with the number of clients assigned to them. If you and your fiancee are having issues with a public defender, you can always contact and bring up your concerns with the Indigent Defenders Office for the parish your fiancee's charges are in. That office may be able to resolve your concerns satisfactorily or appoint a new public defender if necessary.  I would be more than happy to discuss this matter with you if you feel that you would be better served with retaining private defense counsel. I conduct initial client consultations free of charge and would be able to work out a payment plan for the retainer. Once we discuss and I have a better idea of the charges your fiancee is facing, I'll be able to better serve your needs. Please feel free to give my office a call at (337)237-0492 to set up a free consultation.... Read Answer

Yes, once you and your fiancé are married, an intrafamily adoption may be conducted wherein a stepparent may adopt the child of his spouse so long as certain criteria are met. You are correct that your ex has not established paternity. As I assume you and your ex were not married on or around the time your daughter was born, where paternity would have been presumed, in Louisiana at the time your daughter was born your ex would have had to either 1) signed the birth certificate or 2) sign an act of acknowledgement of paternity to establish his parental rights. Now that said, in my experience, as you know he is the biological father of your daughter, he will very likely be considered a necessary party that the Court will require to be served with the adoption paperwork and given a chance to contest the adoption, though he will have little power under the law to do so. Under Louisiana law, parental rights may be terminated if a father is unable to demonstrate a substantial commitment to parental responsibilities. Specifically, under Louisiana Civil Code Article 1245, if your ex has refused or failed to visit, communicate, or attempt to communicate with your daughter without just cause for a period of at least six months, his consent is not necessary for the adoption to go through. A case of particular note with facts very similar to your own is In re C.E.B., 161 So. 3d 811 (La. App. 3d Cir. 2014). In that case, an intrafamily adoption was allowed to proceed as the biological father, who had not established his paternity rights, was unable to demonstrate a substantial commitment to parental responsibilities. Based upon your description of the situation, it appears that serving your ex with the intrafamily adoption petition may be an issue and, even if you were able to locate him, he may dodge service. Louisiana civil procedure allows for matters such as this to proceed but may require an attorney (called a “curator”) to be appointed to attempt to locate and serve him and, if unable to, to represent your ex’s best interests in his stead at the adoption proceedings. During the adoption process, the Department of Children and Family Services will conduct a background check and your new husband will need to be fingerprinted. If you would also like to have your daughter’s last name to be changed during the adoption process, it may also be completed during this process. Intrafamily adoptions can be complicated and drawn-out process if the necessary steps are not met. If you are interested in having someone assist you, please feel free to give my office a call at (337)237-0492 to set up a free consultation. I’ve represented clients in numerous intrafamily adoptions and would be more than happy to assist you.... Read Answer

Hello Ralph, You are free to go live with your father if it is your intent to do so and your father wishes to take you in. Under Louisiana Civil Code article 29, once you attain the age of 18 you have reached what is called the "age of majority" and are considered an adult. As an adult, your parents' legal right of control over you is lost and you are able to make choices on your own behalf without the necessity of their approval. So, if you would rather live with your father, that decision is yours alone and your mother has no legal right to stop you. As it appears from your description of the situation that you may be the victim of domestic violence, please do take care in informing your mother and her boyfriend of your intention to leave. I do not want there to be an altercation and you to be harmed. If you are in need of a protective order, please do not hesitate to give my office a call at (337)237-0492 and I'll be happy to help. Sincerely, Chase A. Manuel... Read Answer

No. Generally, a lawyer can represent a client in their absence with a signed waiver of appearance, but if a bench warrant has been issued the attorney cannot appear in their stead because the client does not want to be arrested. It would be essentially the attorney aiding in the client's attempt to evade arrest. I would advise that It is better to contact the court and ask that they stay the execution of the warrant and you appear at the next available court date. In some cases paying a warrant fee and getting reserved with a new court date will allow you to avoid being arrested and will give you the opportunity to resolve the charges. The resolution of a warrant issue without an arrest is a case-by-case specific issue and is dependent on the facts involved. If it is just a bench warrant for failing to appear and it was issued recently, then it is more likely that the court will provide leniency and stay the warrant pending your appearance at the next court date. If it has been a long time since the warrant was issued or there are multiple warrants pending, then it is less likely to be stayed. In all cases, it is best to contact the court and hope for leniency. Waiting or ignoring the issue will only result in arrest. If you would like, please feel free to give my office a call at (337)237-0492 and set up a free consult so that we can discuss the resolution of your charges and the outstanding warrant. Thank you.... Read Answer

This seems to be a question for your Chapter 13 attorney.  Your question does not say whether the vehicle is titled in your name or not.  If the vehicle is not an asset in your bankruptcy case and you are just making payments, then your monthly budget will have to be adjusted if the car payment goes away.  If your name is on the title and the vehicle is an asset in your bankruptcy case, you will need to file paperwork in your bankrutcy case showing the removal of the vehicle as an asset and the change in the monthly budget.... Read Answer

  Hi Amanda, Based on the facts you have provided, you would be entitled to an immediate divorce. Under Louisiana law, a couple has to wait a predetermined number of days separate and apart prior to finalizing a divorce, 180 days without minor children or 365 with minor children. As you appear to have been living separate and apart for well over either of those periods, we can file a petition for divorce under Louisiana Civil Code Article 103 attesting that you have already lived separate and apart for the requisite amount of time and are entitled to have your divorce certified without further delay. Your ex will need to be served with the divorce petition and a legal delay of 10 days allowing him an opportunity to answer the petition will have to run, but without any objection or other issues arising the process can be completed fairly quickly. My office is available to assist in guiding you through this process. Please feel free to give my office a call at (337)237-0492 and set up a free consult so that we can discuss. Thank you.  ... Read Answer

Assuming that your father did not die mysteriously from a blow to the head and you did not find your father's body, you might, to the extent that your brother was implying to others (it doesn't matter what he said to you) that you may have had something to do with your faither's death, have a claim for defamation.  However, statutes of limitations for defamation are generally short (1 year in NY, don't know about LA), and it sounds as if most of this took place quite a while ago.... Read Answer

With all due respect to your police friend, I think he/she is wrong.  It's a crime to withhold osmeone's mail.  Google "is it a crime to withhold someone's mail" and you'll see.  The fact that you have a claim against that person for money you cliam she owes you (all it is is a claim until and unless you win a lawuit and get a judgment, but you still woulnd' thave the right to withhold her mail) doesn't change this.  You have no contract with this person in which she agrees to let you withhold her mail until she pays you back, nor is there any statute which allows you to withhold mail until your claim is satisfied.  Give her her mail and sue her in small claims court.... Read Answer

Hello Ruth, I have a multiple parish criminal defense practice in Louisiana. In order to better assist, I'll need to know what the charges are and where they were brought. If you would like, please feel free to give my office a call at (337)237-0492 and set up a free consult so that we can discuss the resolution of his charges. Thank you.  ... Read Answer

There are a multitude of issues that you both would face if you intend to marry and adjust status for your spouse thereafter. Among them are overcoming the 90 day presumption of fraud if you marry prior to that deadline, adjusting status on the visa waiver program, your status as both the marriage sponsor and the financial sponsor, and the brand new declaration of self sufficiency form. Discuss these issues and more with an attorney in a free private phone call.  Counsel anywhere in the USA can represent you and some of us charge a very affordable flat fee to see the case through to conclusion. ... Read Answer

In Louisiana, a parent has a paramount right of custody over a non-parent.  In a struggle over custody, a non-parent must show that custody to the parent would cause "substantial harm" to the child.  A relative, such as an aunt, can file for visitation in "extraordinary circumstances," one of which would be the death of the mother.   The best course of action would be for the mother and father to agree upon your having custody in the event of her death,  prior to her death or becoming incapacitated to the extent that she could not make decisions.   If the mother and father are divorced, this may be difficult or impossible to accomplish.   She could appoint you as tutor for the child in her will, but that appointment will not be good against the father unless he agrees, or is found unfit.   He may agree if he is incapable of caring for the child.   Whether or not you or the grandmother would be a more appropriate person to care for the child is a matter of many factors involving the best interest of the child.... Read Answer

Long story short, you will need to go to the DMV and get what is called an SR-22 hardship license to allow you to drive while your license is suspended, which depending upon the circumstances of your OWI arrest and the charges will likely be one-year. More specifically, the Dept. of Public Safety and Corrections requires the OMV to suspend a driver’s license if the person is arrested for suspicion of operating a vehicle while intoxicated, when the person driving has a blood alcohol concentration of .08% or greater, or when the person refuses a chemical test upon arrest. This administrative hearing is a separate process from the criminal action for the OWI, proceeds independently, and the outcome of which has no consequence in the criminal prosecution.  What likely happened when you were arrested was the law enforcement officer seized your driver’s license and issued you a temporary paper license. This temporary license allows you the right to operate a motor vehicle for a period not to exceed 30 days from the date of arrest. The temporary should have also provided you with notice that you have 30 days from the date of arrest to make a written request to the DPSC for an administrative hearing. If that time passes and no request is made for the administrative law hearing, the license is suspended and the decision is pretty much final. On the other hand, if the administrative hearing is conducted and the suspension is upheld by the administrative law judge, the only other option to take is to petition the district court to appeal the decision. Both the administrative hearing and the appeal are extremely unlikely to allow you to keep your license as the only showing the state has to make to succeed is that there was probable cause to believe that you were operating a vehicle while intoxicated. Which is a very low bar. The length of the suspension of your license is dependent on a number of factors but typically is one year. All that said, this is not the end. You are still able to drive, but you will be required to go to the DMV and obtain what is called an SR-22 hardship license. This license will allow you to drive, but with restrictions on where you can go. Typically, you can go to work, school, church, the grocery store, but the main restriction is you will not be able to drive to a bar. With a hardship license, the DMV may also require that you install a breath interlock device in order to drive, which can be costly. This decision of the DMV is dependent on whether this is your first OWI, the level of intoxication which you may have been measured at, etc.   If you are in need of an attorney to represent you in your OWI, please feel free to contact my office today at 337-237-0492 for an appointment so that we can discuss your case.... Read Answer

It depends upon the type of drug crime you are charged. I'll give you some examples. In the case of a misdemeanor charge for possession of marijuana, which carries a possible sentence $500 in fines, six months in the parish jail, or both, the prosecutor will have up to two years to bring the charge against you. Whereas with a felony charge of the manufacture of Schedule I narcotics, which carries a possible punishment of no less than 5 years and not more than 50 years imprisonment at hard labor, the prosecutor will have up to six years to bring formal charges. Either way, if you are charged with a drug offense, it is very important that you obtain legal representation to protect your rights. Do not answer any questions from law enforcement without an attorney present. If you would like to consult with me further regarding this issue please feel free to set up a free consultation at my office and we can discuss what can be done.... Read Answer

Hello John: You have an absolute right under the United States and Louisiana Constitutions to receive any and all exculpatory evidence. In other words, if the prosecutor has evidence that speaks to your guilt or innocence, they MUST turn it over to you upon request. Not only do they have an obligation to give you all that they, the DA's office and prosecutor, have but they have an obligation under the Supreme Court precedents of Brady v. Maryland, 373 U.S. 83; United States v. Agurs, 427 U.S. 97; and Kyles v. Whitley, 514 U.S. 419 to go to their offices and the police department and seek out that evidence to turn over to you. Now, in Louisiana, depending on the court, you can receive the evidence of the prosecution in one of two ways. 1) You may file a written discovery motion with the court, wherein the court will order the prosecution to provide that evidence to you in a timely manner to prepare for trial; or 2) If the DA's office practices what is called "Open Discovery", there is no necessity for a discovery motion and the prosecutor should provide that evidence to you upon request. Since they appear to be fighting against giving the video evidence to you upon request, they are likely not practicing open discovery and it will be necessary for you to file a discovery motion.  I also noted a couple of other issues that could be taken advantage of in the facts you provided. If the arresting officer has been terminated by another department, there could be a credibility issue with the officer which could affect the court's belief of the officer's report and testimony. Another issue is that, if you have been arraigned (i.e. formally charged), your charges should have already been billed. So any resisting charges should already be in place. The prosecutor trying to leverage a pay fine or they will amend the charges to resisting, is by far out of the ordinary.  If you have been charged with resisting arrest, it is very important that you obtain legal representation to protect your rights. Resisting arrest can come with a fine of up to five hundred dollars, imprisonment of up to six months, or both. Do not answer any more questions from law enforcement without an attorney present. It is uncommon that the maximum is given, but I've seen many judges give 10 days in the parish jail for resisting charges. If you would like to consult with me further regarding this issue please feel free to set up a free consultation at my office and we can discuss what can be done. I'd be more than happy to help with any discovery and/or negotiation with the prosecutor for a reduction of the charges.... Read Answer

Your mother can revoke the POA, record the revocation in the county deed records and present the revocation everywhere the POA has been or might be used.  Other people can rely on the old POA if they do not know that it has been revoked. Note that a Durable POA is used for finances and a Medical POA for medical care.... Read Answer

A bond is merely a guarantee of your appearance in court. In other words it is an assurance that you will show up to all your court dates under the risk of forfeiting the bond if you fail to appear. If you were found not guilty, then more than likely you have made all necessary appearances and the bond may be refunded to you. Exceptions being if at some point during the course of the prosecution you missed a court date and the bond was forfeited or if there are special terms under an agreement with a bonding company. If you paid a cash bond to bond out, it is generally refunded to you by the court once you complete all necessary appearances in court. You can contact the clerk of court to inquire how long it normally takes to get the money back. If you bonded out through a bondsman, it will be governed by the terms of your bonding agreement and you may have to contact them to figure out if, when, and how much you will be refunded.    ... Read Answer