Ask the Law Guy

I have joint custody of my children, as primary. I am remarrried since 5 yrs. My question is, I am getting ready to have major surgery and death can happen. I want to make a living will, though I want to have where the girls step-father and my aunt can have some visitation rights to the girls. (Once a month on a weekend). Can that be done ? Does the step parent have any rights?

Your question brings up several points. I'll try to cover each one in a semi-logical order:

When a parent names a guardian for the children it is really just a nomination. In the event of a dispute between relatives or others seeking custody, a court will decide who is the best guardian for the children, taking the deceased parents wishes into account. The surviving parent will get custody of the children regardless of the nomination unless the surviving parent is proved unfit.
Non-parents seeking court-ordered visits with the children against the wishes of the surviving parent have a tough row to hoe. Recent court decisions have held that parents have a constitutional right to control of who has contact with their children. A North Carolina court decision ruled that only relatives of the child have standing to seek custody or visitation. A step-parent is not related to a child once the marriage to the other parent has ended.
A living will (or advanced directive) is not the proper place to include provisions about child custody. A living will contains instructions from the patient to the doctor about what kind of care the patient wants. I have a form for preparing a living will on my website. The ususal practice is to place instructions about guardianship of the children in your will. Everyone over 18 should really have a will. Costs for preparing a will vary but expect to pay anywhere from $100 to $500 for a basic will. You can have a lawyer prepare your will or use a software program such as Quicken Willmaker. Don't use paper form kits or try to do your own will from scratch. If there is any chance your estate could be over $1 million (consider home, insurance, and other assets), talk to a lawyer who does estate planning.
I suggest your talk with the children's father about your wishes about visits with the children after your death. You might consider drawing up a written agreement. While the written agreement probably would not be legally enforceable, it would at least set out the terms and the children's father might feel he had a moral obligation to follow it.

Hi I was just wondering if when someone gets a warrant for their arrest and they choose to run if the warrant for their arrest will ever erase.. I was also wondering if you do run but decide to turn youself in if you will be in jail for a longer amount of time.

No the warrant would remain outstanding. Nearly anytime an officer stops someone (for a traffic violation or anything else) the officer will check for outstanding warrants. If the officer finds one, the person would be arrested. If the person were arrested in a state other than the one that issued the warrant, the person could be held for extradition to the state that issued to warrant.
A person can turn themselves in at any time and conditions of release such as the amount of bail are set by a judge or magistrate. If the person was not able to post bail he would stay in jail until the case was tried. With a record of fleeing to avoid arrest it could be difficult for a person to get a low bond.

If a buyer purchases house knowing previous owner received in writing a letter from neighbor regarding tree on property line leaning over our garage and receives a check at closing from escrow made out to a tree company to trim this tree for $200.00 and has not followed thru since 12/6/02, is there anything I can do? Also, may I trim this tree as long as prudent by a licensed arborist with a national tree company without being sued?

I'm going to assume you are located in North Carolina, however I think the question about tree liability is the same in most states.

The buyer of the house may have a contractual obligation to put the $200 toward trimming the tree, but it would depend on the wording of the sales agreement.

Unless a tree poses an unusual danger to neighboring property, such as leaning in way that indicates it could fall, the owner has no responsibility to cut or trim it. You can trim roots or branches that protrude across the property line, but you can't cut parts that are on his property.

I suggest you see if there is a non-profit mediation service in your area and see if your neighbor is willing to go with you and try to work out a solution.

See answer to previous tree case.

Is it legal to video tape people in a public environment without their consent? Without their knowledge? Without the camera in plain view? Can sound be recorded without consent? Can video obtained against the tapee's consent or knowledge be used against him in a court of law?

The key to the answer to your question is "public." If you are in a place where you are visible to members of the public anyone who chooses to do so can photograph you either openly or secretly. Sound recordings are trickier. A person can record a conversation they are participating in without the knowledge of the other participants. If a person is having a conversation where they can be overheard nothing would prevent that person from recording the conversation. Using some sort of device to record a conversation that you could not overhear could violate federal and state wiretapping statutes.

Sound or video recordings could be used in court. For example frequently in disability claims a defendant will try to get videos of the claimant doing something (such as bowling or playing softball) that shows they are not disabled. Those things are routinely admitted.

I don't understand how insurance and driver's license points work in North Carolina.

Most people are most concerned with insurance points since they are a big factor in how much you pay for car insurance. Driver's license points are completely different. If you accumulate more than 12 driver's license points in a 3-year period, the DMV can suspend your license to drive.

Insurance points that the insured owner or any driver in the insured's household has increase the amount you will pay for car insurance. For example an illegal passing conviction would result in 2 insurance points and result in a 40 percent surcharge on your insurance. In addition to convictions for traffic violations, an accident where you are determined to be "at fault" can result in from 1 to 3 insurance points.

If you are cited for a traffic offense you could save more on insurance than you would spend on attorney fees if you consult an attorney. Never simply send in the fine plus costs on the back of the ticket. Reductions to a non-moving violation or an offense that would not result in insurance points are common in speeding cases. If you got a ticket for an inspection or registration violation, you are not in danger of getting insurance points.

Expect to pay anywhere from $100 to $500 for an attorney to represent you for a speeding ticket. There are probably lots of attorneys in most places whose fees are at the lower end of the scale. Generally you should pick an attorney who regularly practices in the county where you were charged, the local attorney will know the "lay of the land" better. Many attorneys practice in their own county and neighboring counties. A lot would probably quote a price over the phone (I charge $175 mostly).

You will ususally have to pay court costs (now $100) and a fine of up to $50.

I am out of work because of the recent layoffs at Pillowtex. Any suggestions on how to keep from losing all my property?

Yes. First of all contact the Employment Security Commission about unemployment benefits. Also find out from some of the response teams in the area if there is any retraining assistance available.

Figure out what your income will be for the next few months and prioritize your spending. Shelter (rent or mortagage), food and transportation should be priorities. If you cannot afford your present mortgage or rent, act now to contact your lender or landlord to negotiate a reduction. Remember that with layoffs this size there is not going to be a ready market for foreclosed homes or renters seeking housing so you have some leverage.

If you have credit card debt consider contacting the credit card companies, explain your situation and see if you can negotiate a forebearance or reduction in interest until you can get back on your feet. Do this right away before you get too far behind. You could also seek credit counseling from a reputable source, such as a Consumer Credit Counseling Service (CCCS) with an office in your area. Check here for referrals. Reputable firms usually have nominal or no fees. Avoid counseling services that advertise on TV or the internet that have no local office.

Bankruptcy could be an option, but first try CCCS to see if they could help before taking this step. The staff has a lot of experience negotiating with creditors and creditors are more likely to make concessions if they know you are working through CCCS.

Bankruptcy can eliminate debt, mostly debt that is unsecured, like credit card debt. In order to keep assets such as a house or car that are financed, you will generally have to keep making payments. Bankruptcy won't effect the amount of money coming in to your household. If eliminating unsecured debt will allow you to devote your income to food and shelter, bankruptcy might be an option. If you have modest assets though, creditors have limited options for collecting debts that you owe.

There is more information about bankruptcy on my website. More solid financial advice is available from the government here.

Who has liability for fallen trees?

A tree fell from adjoining property today during a storm and knocked out a good 10-15 foot chunk of my fence.

Luckily, nobody was hurt, the Dogs didn't get out, etc.

But, Now I have a big piece of tree and a broken fence in my back yard. Any idea if the owner of the adjoining property would be fully or partially responsible?

As far as I know the tree wasn't unusually sick or damaged, but then I haven't really inspected it closely, and I'm not an expert in the field either.

I know my insurance would probably pay for this, but I do have a $500 deductible, so I'd really rather have the owner of the adjoining land pay for removal of the tree and repair of the fence.

If the tree was healthy, the neighboring land owner is probably not liable for the damage to the fence. A landowner is obligated to use reasonable care to avoid conditions on his property that are likely to damage neighbor's property. This would include removing sick or damaged trees that could fall on a neighbor's property. There is no obligation to remove a healthy tree from your land. Unfortunately you'll have to bear the loss here.

For example, one of my neighbors once asked me to take out a large tree that is just on my side of the property line. I liked the tree and did not want to remove it. I called a tree surgeon who came out and told me that in his opinion the tree was perfectly healthy no more likely to fall than any other tree. I did get the company to cut off some big branches that crossed over the neighbor's property, but I had no legal obligation to do that.


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