South Carolina Parental Rights

by Alex Kornfeld

South Carolina Parental Rights

SOUTH CAROLINA PARENTAL RIGHTS ARE EQUAL

In South Carolina each parent has equal rights concerning the minor child(ren) regardless of who has custody of the minor child(ren) unless these rights are prohibited by the court.  This means each parent has equal rights to all educational records, medical records, and the right to participate in their child’s school activities.  If you are the biological parent or legal parent of a child and no Order exist or the Order does not restrain your rights then you have equal rights as stated in the statute below.  It is important to read an Order of the Court very carefully.   As always, the best interest of the child is the paramount concern of the Court.  The full language of the statue can be found below.

S.C. Code§ 63-5-30 Rights and duties of parents regarding minor children:

The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.

Attorney Alex Kornfeld is a Family Law Attorney in Greenville, South Carolina. He serves clients in the area of Child Custody Law, Divorce, Child Support, and Parental Rights. If you are facing a Family Law issue, contact him today.

by Alex Kornfeld

Speeding and Traffic Tickets

Should I Hire a Greenville, SC Traffic Court Lawyer?

If you have received a citation for a traffic violation it may be in your best interest to hire a traffic ticket lawyer to represent you.

If you feel you are not guilty of the offense in which you have been charged then analyzing the facts, procedure, penalties, cost, and the overall circumstances concerning the case is important.

If this represents you, hiring a Greenville, SC Traffic Ticket Attorney may be in your best interest.

Are you curious how many points you have against your South Carolina Driver’s license?  If so go to https://www.scdmvonline.com/dmvpublic/trans/drecpoints.aspx and enter the required information to find out.

If you have 12 points or more against your license then your license will be suspended.

Points against your driving record will be cut in half after one year.  For example, if you were found guilty of Reckless Driving which is a 6 point ticket on January 1, 2013 then on January 1, 2014 you would only have 3 points against your license.

Points against your license could result in a higher insurance premium. The amount of points posted against your driver records depends on the infraction but some of the most common infractions are speeding not more than 10 m.p.h. which carries 2 points, more than 10 mph. about the posted speed limit which carries 4 points, failing to yield the right of way which carries 4 points, and following too closely which carries 4 points.

If you are guilty of the infraction you may benefit by taking a defensive driving course which could reduce the amount of points you have against your license.

Alex Kornfeld is a Criminal Defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

Sources: http://www.scdmvonline.com/DMVNew/default.aspx?n=point_system

by Alex Kornfeld

Bond Hearings in South Carolina

Greenville, South Carolina Bond Hearing Lawyer

If a person has been charged with a crime and is currently in jail, that person most likely appeared before a Judge and that Judge either set bond or denied bond entirely.  In either case, that person is entitled to one bond hearing.

You can be represented by a Criminal Defense Attorney when appearing in South Carolina Bond Court. At the hearing, the Court must make a decision whether bond is appropriate, whether to decrease the bond, or, in some rare instances, whether the bond should be increased.

The Court will consider two issues;

(1)      the Defendant’s flight risk and;

(2)      the Defendant’s threat to the community.

(1) When determining flight risk the Court will generally consider the ties the accused has to the community, ties the accused may have outside of the community, resources, and any factor that may affect the accused’s ability to appear should the bond be reduced.

(2) The Court generally reviews the allegations against the accused, whether the crime is violent, whether there is a strong possibility that a victim will be harmed should the accused be released, and the accused’s prior record.

A bond hearing is a serious proceeding in which an attorney must take the appropriate time to prepare.  You should know that bond hearings do not happen every day, and if you or the accused is faced with a bond that is not attainable, the time to hire an attorney is sooner rather than later.  In Greenville County, South Carolina the Defendant’s lawyer must request, receive, and review initial discovery prior to filing a motion for bond reduction unless the Defendant is being held without bond.

Motion for Bond Reconsideration

If the accused has already had a bond hearing in connection with the accused charges, the accused can request a reconsideration if there is a considerable change in circumstances.  In most cases, there is not a considerable change in circumstances.

Bond Defined and Types of Bond

Bond is a restraint the Courts put on a Defendant to insure the Defendant will make all required appearances.  There are three common bonds.  They are the personal recognizance bond, the surety bond, and the property bond.

The personal recognizance bond, or PR bond, is a bond in which nothing is held by the Court or a bondsman.  The Defendant’s word and signature stating that the Defendant will make all appearances is all that is required.

The surety bond is the bond in which a monetary bond is required.  A Defendant, or someone on Defendant’s behalf, can tender an amount to the Court for bond or hire a bondsman.  A bondsman will require significantly less to bond the Defendant out of jail than the actual bond.

A surety bond in which property is put up as collateral will hold the bond when a party who has property in the County (or jurisdiction) in which the Defendant is charged puts the property up as a surety against the Defendant’s flight risk.

A cash bond is an amount the Defendant puts up for collateral and is held to insure that the Defendant makes all required Court appearances.  If the Defendant fails to appear, his bond may be terminated and the bond may be forfeited.

Alex Kornfeld is a Criminal Defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

by Alex Kornfeld

EXPUNGEMENT OF CRIMINAL RECORDS AND PARDONS IN SOUTH CAROLINA

An expungement removes a prior charge from one’s record.  In certain situations, the law of South Carolina affords you the right to have a prior charge removed or expunged.  This article attempts to explain what charges may qualify to be expunged as well as which charges do not qualify.

Criminal Charges In Which The Defendant Was Found Not Guilty Or In Which The Charges Were Dismissed

If you were charged with a crime that you were found not guilty of or if the charge was dismissed, you are eligible for an expungment at no cost.  If your case was in a Magistrate or Municipal Court, which generally means it is not a felony, after June 2, 2009 the Court will expunge your case automatically.  If you were charged prior to June 2, 2009 and the charge was dismissed or you were found not guilty, you or your lawyer can apply directly to the Court for an expungement.

Exception To The Rule

If you were charged with a crime under title 50 (the South Carolina Code which concerns Fish, Game, and Watercraft, or with a traffic violation, or for violating a county or municipal ordinance) and you were not fingerprinted at the time of arrest, the Court has the discretion as to whether they will expunge the charge.

Charges That Can Qualify For Expungements

If you successfully complete one of the following programs in connection with the relevant crime or you were charged with a crime as stated below, you may be eligible for an expungement.

PTI (pre-trial intervention);

An Alcohol Education Program;

Traffic Education Program;

Non-violent Juvenile Offenses;

1^st Offense Misdemeanor Fraudulent Check;

Conditional discharge for simple possession of marijuana or hashish;

1^st Offense Conviction in Magistrate Court;

Youthful Offender Act (1^st Offense for Defendants between 17-24, no other conviction for 5 years after completion of sentence, the original offense was non-violent misdemeanor, Class D, E, F felony or a Felony with a maximum term of 15 years imprisonment);

1^st Offense Failure to Stop when signaled by a law enforcement vehicle;

and soon one with a possession with intent to distribute a controlled substance may apply for an expungement twenty years from the date of the completion of any sentence, including probation and parole, for a drug conviction or any felony conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction and any associated bench warrant.

Some Criminal Records Destruction;

Any other statutory authorization;

your charge can be expunged.

If You Qualify For An Expungement

I recommend you seek the advice of a criminal defense lawyer in the County in which you are seeking an expungement.  If the charge is not a magistrate or municipal charge as outlined above then you and your lawyer should fill out the application for expungement for that specific County.

Expungement Fees

The administrative fee paid to the Solicitor’s Office is $250, a $25 fee is paid to SLED, and a $35 filing fee is paid to the Clerk of Court.  The fees must be paid by separate money orders and refunds are not granted.  SLED, the Solicitor’s Office and a Circuit Court Judge must all approve the expungement.

Pardon

If you are not eligible for an expungement you may qualify for a pardon.  A pardon, in short, reinstates your rights as a citizen so you can vote, resume a licensed profession, carry a gun, hold public office, etc. and the pardon ends your penalty.  To learn more about pardons go to the South Carolina Bar website or click  http://www.dppps.sc.gov/apply_for_a_pardon.html to download the pardon application.

Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. You can contact him at 864-335-9990 or alex@alexkornfeld.com   This article is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of an attorney/client relationship.

Sources Used:

http://www.judicial.state.sc.us/expungementInfo/expAppProcessGS.cfm

http://www.scbar.org/PublicServices/ExpungementandPardons.aspx

http://www.greenvillecounty.org/solicitor/expungements.asp

http://www.dppps.sc.gov/apply_for_a_pardon.html

South Carolina Code Section 22-5-910; 17-22-910

http://www.greenvillecounty.org/solicitor/pdf/expungement_greenville.pdf

https://www.scstatehouse.gov/sess122_2017-2018/bills/3209.htm

by Alex Kornfeld

The Business Basics

If you are a business owner, you know there are several obstacles as well as opportunities that you must access and decisions to make that will put you in the best possible position to capitalize. Depending on your unique situation it may be beneficial to incorporate, create a LLC or another business entity for tax and liability reasons. It is also often important to copyright your work or trademark a particular design, logo or slogan. This will not only give you a claim to your creative work but could guard against being sued and paying considerable legal fees for something that could have been avoided.

Those in the business world know there will be highs and lows, deals, and unfortunately conflicts. If you have a contract dispute, employment disagreement or feel someone is not fulfilling their fiduciary duty, it is important to take action before an irreparable amount of damage is done.

by Alex Kornfeld

NAME CHANGE LAWYER IN SOUTH CAROLINA

If you would like to legally change your name in the state of South Carolina and it is not due to marriage or pursuant to a divorce you must provide:

(1)   Your fingerprints and a criminal background check must be conducted by the State Law Enforcement Division or SLED.  Your fingerprints should be taken by your local law enforcement agency.  The background check costs $25.

(2)   A statement from the Department of Social Services (DSS) that states whether you are on the department’s Central Registry of Child Abuse and Neglect.

(3)   A sworn statement written and signed by you stating whether you are under a court order to pay child support or alimony.

(4)   A statement from the South Carolina Law Enforcement Division stating whether you are on the sex offender registry.

After you and your attorney provide the following information to the Court, a hearing will be set and a Judge will make an informed decision and determine whether to grant your name change.

Within 10 days of your name change, you must change your name on your South Carolina DMV records. When you change your name with the department, all of the vehicle and driver records that relate to you will be updated.

To change your name you must visit a DMV office, complete Form 4057, and present proper documentation such as your court order.  You cannot change your name by mail or online.  Information about changing your name on your driver’s license can be found at SCDMVonline.com.

If you are seeking representation in a name change please call Alex at 864-335-9990. Right now, Alex Kornfeld is willing to represent you in a name change for $1,200 in Greenville, Spartanburg, Pickens, Anderson, or Anderson. This fee includes the filing fee, the SLED fee, and the DSS fee. Alex will travel to other counties but the fee will be slightly higher.

by Alex Kornfeld

Custody & Visitation

If a visitation agreement is not or cannot be made between the parties, a Court will order what it deems appropriate. Remember, in almost all instances custody circumstances are modifiable.

One of the most hotly contested issues in family law is custody. The Court will look at a number of factors in considering what is in the best interest of the child.
Some of those factors are:

• Child’s preference
• The character, fitness, attitude and inclinations of each parent
• Religion
• Written agreements between the parties

Child Support/Change of Custody: In most cases, before a Court will modify a previous Custody Court Order, you must show that there has been a substantial and material change of circumstances since the current Order became effective.

Petition for an Order of Protection: If your need protection for a household member because you have been abused, it may be in your best interest to file a petition for an Order of Protection.

Complete Custody, Property, and Support Agreements: An overwhelming number of divorce cases settle before going to trial. If you and your spouse have come to an agreement on all or most of the issues, it may be beneficial to draft a proposed agreement that illustrates your intentions and present this to the Court. Many times, if the Court finds that the agreement is fair and equitable to both parties and the children, the Court will approve the agreement and make it part of the Court Order. It is always advisable for both parties to consult their own attorney before deciding whether an agreement is in fact fair. The advantages to coming to an equitable agreement are many, but include peace of mind, time, and money.

by Alex Kornfeld

Helpful FAQ For Families

Divorce:

Q: What should I expect when pursuing a divorce?
A: In all cases, pleadings must be filed with the family court and the Defendant must be served. Depending on the complexity of the case and need of the client, several events may happen such as temporary hearings, investigation, discovery, the gathering of information, subpoenas, mediation, and final hearings.

Q: How will the marital assets and debts be divided?
A: It depends. The Court has wide discretion and usually considers several factors when dividing marital assets and debts.

Q: How long will it take for the divorce to be final?
A: Divorces can be finalized within a matter of months or they may take years to finalize. The longest divorce trial may have taken a total of 86 days and cost over $13 million dollars. See http://www.totaldivorce.com/news/articles/unusual/longest-divorce-case.aspx for an interesting read.

Q: Will I be ordered to pay or will I receive alimony?
A: Alimony is ordered to put the supported spouse in a position similar to that in which they enjoyed during the marriage. Courts will consider, among other things, the duration of the marriage, the educational background of each spouse, employment history or earning potential, expenses, property of the parties, or marital misconduct.

Separation:

Q: Do I need to go through the Courts to get a separation or can I just get a divorce?
A: It depends. In most cases you will have to be separate and apart for over a year before you can file for a divorce. Filing for a separation may be advantageous or necessary, especially if you have minor children

Custody:

Q: How does the Court decide custody?
A: There are three common types of custody in custody law; they are sole, joint, and split. The Court’s paramount concern is the best interest of the child. To determine this, the Court considers several factors such as who has been the primary caretaker. The Court may appoint a guardian ad litem to represent the interests of the child(ren).

Q: Things have changed since the Court made its finding concerning custody. Can the order be changed?
A: Due to the very nature of child custody, child custody orders are always modifiable.

Child Support:

Q: What is the remedy if child support is not paid?
A: If one who is ordered to pay child support fails to pay without cause, it may be in the child’s best interest if the parent is brought before the Court.

Q: What if things have changed in such a way that I can no longer pay the Court Ordered Child Support?
A: It may be in your best interest to file a motion with the Court for a modification of your child support payments.

Order of Protection:

Q: I’m afraid of someone, what should I do?
A: You may need an Order of Protection. An Order of Protection will give legal protection to the petitioner or minor household members from the abuse of another household member where the aggressor has received notice of the proceedings and has had an opportunity to be heard.

Paternity:

Q: I have questions about whether I’m actually the father of the child, what should I do?
A: A finding of paternity can be made by a Judge. A Judge may order the parties to submit to a DNA test to make a finding.

Q: I think I’m the father of the child, but the mother of the child won’t let me see the child, what should I do?
A: If you believe you are the father of a child, you will have grounds to bring a suit in an effort to adjudicate paternity regardless of whether the mother is married.

Name Change:

Q: I’m not getting a divorce, but I would like to change my name or my child’s name. How does the process work?
A: See my blog! How to Change Your Name In South Carolina

Marital Dissolution Agreement:

Q: My spouse and I want to get a separation or divorce, and we have agreed on custody, asset/debt division, property, and everything else. How do I move forward?
A: Having a lawyer draft a complete and detailed marital dissolution can protect you as well as guard you from legal fees, stress and provide overall peace of mind.

by Alex Kornfeld

Am I Eligible For PTI?

Pre-Trial Intervention (PTI) in South Carolina

PTI, or pre-trial intervention, is a statutorily enacted pre-trial program that allows those charged with a crime in the state of South Carolina to escape the stresses of trial preparation, a lengthy trial, and a possible guilty plea or finding by a jury that one is guilty.

PTI has many advantages that traditional cases are not afforded.  For example, there is certainty in the outcome.  If a Defendant is eligible for PTI, it is entirely in that Defendant’s hands to enter the program, complete the program, and pay restitution if any is ordered.  This should give a Defendant the peace of mind that he controls his own destiny.  After the Defendant completes the program, the charges will be dropped.  At that time, a Defendant has the opportunity to have his record expunged.  Unfortunately, there are varying Court costs involved.  There is no flat line fee, but a Defendant can expect to pay approximately $300.00 in Court costs.

Several counties have a program similar to PTI for juveniles charged with a crime.  For example, Greenville County offers juvenile diversion services; the cost is currently $200.  Pickens County offers a similar program called the juvenile arbitration program.  It is important to note that while the programs in place for a juvenile charged with a crime are similar to PTI,  they are not the same, and there is no rule that states one that was enrolled in a program as a juvenile must be denied PTI as an adult.

Who Is Eligible For PTI?

The State has prosecutorial discretion when deciding whether a criminal defendant is eligible for PTI.  A solicitor will consider whether they will offer PTI on a case by case basis.  In laymen’s terms, a solicitor has the power to do what he or she wants to do.  That means a Defendant can be denied PTI for a crime that would otherwise be statutorily eligible for PTI.

Who Isn’t Eligbile For PTI?

Pursuant to the South Carolina Code of Laws, the following are NOT eligible for PTI:

• Persons previously considered for PTI;
• If the person is charged with:
  • Blackmail
  • DUI or DUAC
  • A traffic-related offense which is punishable only by fine or loss of points like a speeding ticket
  • The following fish, game, wildlife, or commercial fishery-related offenses:
  • resisting arrest by the use of force, violence, or weapons against an employee of the department while engaged in his duties, a law enforcement officer aiding in the work of the department, or a federally commissioned employee engaged in like or similar employment
  • night hunting deer or bear
  • killing or possessing a wild turkey during the closed season
  • roost shooting wild turkeys between official sunset and official sunrise
  • shooting wild turkeys over bait
  • trespassing to hunt waterfowl
• a crime of violence as defined in Section 16-1-60[i]
•  an offense contained in Chapter 25 of Title 16 (like CDV) if the offender has been convicted previously of a violation of that chapter or a similar offense in another jurisdiction.

If you are still reading this article, I assume that you or your loved one may still be a candidate for PTI.  Talk with your lawyer and be proactive in your case.  There is only a certain window of time in which a Defendant is allowed to enter PTI. If you or your loved one fails to show initiative, a Solicitor has little reason to offer PTI and your lawyer may fail to mention it to you because he may not have the confidence that you will be able to complete the program.

Make sure that you or your loved ones take the process seriously; you should make sure you are an active participant in your case.

What You Need To Bring With You When You Apply For PTI

In most jurisdictions, when you apply for PTI you must have:

1. A $100.00 money order (That Means No Cash/No Check)
2. Your picture ID
3. Your Social Security Card
4. A copy of your warrant(s) or ticket(s).

Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law.