Louisiana Recent Legal Answers from Lawyers

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 More

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 More

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 More

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 More

  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 More

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 More

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 More

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 More

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 More

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 More

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 More

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 More

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 More

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 More

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 More

It will require jumping through some legal hoops, but based upon the facts provided you should be able to obtain legal custody of him. Under Louisiana Children's Code Article 1101 et seq., to obtain legal custody of the child it will be necessary for both parents to voluntarily relinquish their parental rights to the child for the purpose of adoption. In addition to signing an act of surrender of the child, which will need to be filed and certified with the court, both parents must also go through a number of mandatory steps: 1) A minimum of two pre-surrender counseling sessions with a licensed counselor. This will be mandatory for the mother, but the father may waive the necessity of counseling. After completion the counselor will then sign an affidavit attesting to the completion of the counseling and that the parent(s) understand the nature and consequences of the surrender. 2) Both parents will need to have separate legal counseling at the signing of the act of surrender. This means that the attorney that represents you in the adoption cannot also provide them with legal counseling before their signing. The legal counseling provided to them will include the legal effect of the surrender, as well as the implications of perjury. Each of those attorney(s) will then execute an affidavit of counsel. 3) Complete a statement of family history which will be given to the adoptive parents at the time of placement and which will be made available to the adopted child at the age of 18 years or older. The process of completing a voluntary surrender for adoption is a complicated legal matter. I would strongly advice that you seek legal representation to ensure it is completed properly. I'd be more than happy to assist you in this matter if you see fit. I have represented many clients such as yourself under similar circumstances. Please feel free to reach out to my office if you would like to set up a free consultation.... Read More

A will would be sufficient to convey ownership of the home upon his passing. One consideration you need to be aware of is if he has any children under the age of 23, either from his first marriage or together with you. If so, they would be considered a forced heir and be entitled to a mandatory portion of his estate, which he cannot will away.  My office drafts estate planning documents at a flat rate of a few hundred dollars, depending upon what needs to be done. If you would like to set up a free consultation with me regarding this issue, please feel free to contact me.... Read More

Short answer based upon the facts provided in your question, the paternity for the minor child has most likely not been established and no obligations would fall upon you, but the way the courts are in Louisiana you should bring a disavowal action to determine whether or not you are the father of the child. Since the Louisiana legislature amended the family law portions of the civil code in 2016, signing of the birth certificate no longer establishes legal paternity. If you and your ex never married, the only way those parental rights and obligations would fall to you is if you had executed an act of acknowledgement of paternity of the minor child. In a perfect world where the application of the statutes were strictly applied, you wouldn’t have to go to court to contest paternity and possible child support. Yet, this is not a perfect world, any person can file anything in a court to have it heard, and your ex may bring an action to establish child support even though paternity has not been established. In such a case you would be forced to not only contest the establishment of child support, but to also contest the paternity. All that said your issue can be resolved. It will require what is called a "disavowal action" and, if she is unwilling to submit the child to a DNA test, a court will order it. Under Louisiana Civil Code Article 187, you may disavow paternity of the child by a showing of clear and convincing evidence that you are not the father. Testimony alone will not be sufficient and will need to be corroborated by other evidence, like a DNA test. Under article 189, the action for disavowal of paternity must be brought within one year from the day of the birth of the child, or the day the you knew or should have known that you may not be the biological father of the child, whichever occurs later. During the disavowal action you may request and the court will order a DNA paternity test to be taken.   If this is something you are interested in pursuing please feel free to set up a free consultation with my office and I would be more than happy to help.... Read More

Will need a little more information to provide you with a specific answer. How is the relative related to the minor child? Is it the grandparent on the mother's side? When did the violence occur? What happened? Were the police called? Generally, documented acts of violence or reoccuring violent tendencies may be grounds for a court to deny visitation. But in some cases, depending on the facts, the Courts have granted limited visitation under supervision. ... Read More

Louisiana is a one-party consent state to recording conversations. This means that in Louisiana, you are legally allowed to record a conversation if you are a contributor to the recording. There is not even a necessity that you make a statement asking for their consent to record. All that is required is that you are a party to the recording and can be heard on the tape. Recordings of conversations that you are a part of are also admissible as evidence in civil and criminal proceedings so long as the recording meets certain criteria: (1) That the recording device was capable of taking the conversation now offered in evidence; (2) That the operator of the device was competent to operate the device; (3) That the recording is authentic and correct; (4) That changes, additions or deletions have not been made in the recording; (5) That the recording had been preserved in a manner that is shown to the court; (6) That the speakers are identified; and (7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement. Though I do not know the specifics of the restraining order you have in place, threats made to a protected party are a violation of the protective order and in most Louisiana courts it is common for the order to state that the retrained party be prohibited from making harassing phone calls. Recordings of those threats can very likely result in the Court finding that they are in violation of the restraining order.... Read More