Do I Need a Custody Order?

          A lot of people call me about child custody cases.  Some people are married to the other parent of the child in question, and looking for a divorce.  Other people have never been married to the other parent, but just want an idea about whether or not a court order about custody is really necessary.

          The question is easy for couples with children looking to divorce.  If you've got kids, you can't get a divorce without some language being included in the decree about how custody, visitation, and child support are going to be handled.  It simply can't happen without it.

          The question is a little more complicated for unmarried couples with children.  Many such couples haven't ever even lived together.  They may wonder if they need a court order to set up custody and visitation schedules if they've always been able to agree among themselves.

          "Need" may be a strong word, but such out-of-court agreements are only good while the couple gets along.  If mom gets mad at dad, or vise versa, then either one could decide they are no longer go to allow the other to see the child, and without a court order, there would be nothing the one parent could do to force the other to give the child back.

          Court ordered custody decrees provide the floor below which visitation cannot fall, and an enforcement mechanism, just in case one parent decides to "break the rules," as it were.

          If you're wondering whether you need a custody decree from a court, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, via Twitter @jonahhammerdyer.  

What Is "Self Defense" In Iowa?

         Recent news events have had many people wondering whether they are legally allowed to defend themselves against an assault.  Maybe you're one of them.  Maybe you know you can defend yourself, but find yourself wondering, how "far" you can go - that is, how much force you can use to defend yourself against the force of another person.

          In Iowa, the defense of "self-defense" is called "justification."  Simply put, one who raises that defense is claiming he was justified in doing what he did based on the circumstances.  When someone uses the Justification Defense, he admits doing an act that would be considered a crime as a general rule, but then seeks to demonstrate some legally sufficient excuse that takes that act outside of the criminal law.  Something like, "Sure I hit him (admission), but he was going to hurt my children (legally sufficient excuse)

The defense is codified (made part of the written law) in Iowa Code § 704.3, which provides:

A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

          Iowa Code § 704.6 sets certain limits on the defense,  It says the Justification Defense is not available to one who initially provokes the use of force against oneself (cannot have "started it") by one's unlawful acts, unless:

a. Such force is grossly disproportionate to the provocation, and is so great that the person reasonably believes that the person is in imminent danger of death or serious injury or

b. The person withdraws from physical contact with the other and indicates clearly to the other that the person desires to terminate the conflict but the other continues or resumes the use of force.

          Essentially, Self Defense cases boil down to whether what you did to defend yourself was reasonable given all the circumstances.  What is reasonable is a question for a jury.  If you're charged with assault but you feel like you acted in self defense, you will need to present the case to a jury to decide. If you or anyone you know needs an attorney who will be willing to put your assault case to a jury, please contact JHD Law at (515) 875-4818, www.jhdlawfirm.com, via Twitter @jonahhammerdyer. 

"But I Didn't Mean To!" So What?

         I have kids; four of them.  My oldest is six.  He is a good and sweet little boy with a real zest for life.  Occasionally his zest for life gets the best of him, the most common side effect of which is that he ends up playing to rough with his younger siblings.

          You know what I'm talking about.  As you read this you're hearing your own parents saying something like, "Someone's going to get hurt if you don't quit."  Maybe you've said the same thing to your own children.  Inevitably, as night follows day, someone always does get hurt.  The victim comes crying to mom and dad, the accused following close behind, repeating the five words that were supposed to make it better:

"But I didn't mean to!"

          Even at that young age we felt like our mind set at the time we did what we were "accused" of doing should be taken into account when deciding whether or not we were "guilty."  Many of my clients, now grown men and women, stand accused of things much more serious than the stuff sister used to taddle for, but they still wonder if they can escape criminal penalties if "they didn't mean" to do it, whatever "it" is.  They are NOT saying they DIDN'T do it.  They're saying they did, but that what they were thinking at the time of the bad act should make it so they can't be punished for it.  So, I guess that begs the question:

"Does it matter?"

         

           The answer is a clear "maybe."  There are certainly crimes for which it doesn't matter, like traffic violations - saying you didn't know the speed limit will never be legally sufficient to keep you from getting the ticket.  But there are certainly crimes for which it does matter, like theft - if you accidentally walk out of the store without paying for something, you can't be found guilty of stealing.

          If you, a family member, or a friend have been charged with a crime and you wonder whether or not "I didn't mean to" is a good defense to the charges, you are strongly encouraged to contact my office for a free, initial consultation.  Don't let being in the wrong place at the wrong time ruin your life.  Contact JHD Law today at (515) 875-4818, www.jhdlawfirm.com, or via Twitter @jonahhammerdyer.