Moving out of State with a Child – 5 FAQs

CC image Wikipedia.orgThis post was written by Sean Sullivan, head of the Family Law department at Appelman & Associates.  Sean is committed to providing his clients with the best representation in a variety of civil matters. He has also served as volunteer law clerk with the Cook County Public Defender’s prestigious Homicide Task Force.  For more information about Sean, check out his bio or give him a call at (630) 717-7801.

In my daily practice, one recurrent theme I deal with is parents who have moved out of state with their child, or are contemplating moving out of state with their child, and suddenly find themselves in a legal battle with their ex who opposes the move. It becomes particularly frustrating for clients when it seems the party objecting to the move is doing so “to get back at me and not because they really care about our child”. That very well may be, but my answer is always the same; in order to move, you have to get permission from the Court.

If the child was born in Illinois, or has resided in Illinois for the last six months, then Illinois has jurisdiction over the child. If Illinois has legal jurisdiction over the child, then the child cannot be removed from the state (on a permanent basis) without the permission of the Court. Your ex may be taking you to Court just to fight you and not out of concern over your child, but it is their legal right to do so.

What do I need to do if I want to move out of state and take my child with me?

You need to contact an attorney and seek their help in filing a motion with the Court asking for permission to remove the child from the state.

What if I am just taking the child out of state temporarily, do I need the permission of the Court?

Maybe.  It depends upon the language that was agreed upon in the joint parenting agreement or the marital settlement agreement. Both agreements typically have some language that allows for removal of the children for short periods of time, but it is best to consult an attorney and have them review either your JPA or MSA to determine this for sure.

I already moved out of state, and did not get the Court’s permission. Is anything going to happen to me?

It is very likely you could be held in contempt by the Court for taking the child out of state without permission. You should attempt to return the child to the state as soon as possible and contact an attorney.

What factors does the Court consider in letting me move my child out of state?

There are many factors the Court takes into consideration and each can be given different weight by the Court. Overall, the controlling factor in the Court’s determination is what is in the best interest of the child.

I am getting remarried, how will the Court look at that?

The Court will consider that as one of the factors it makes in its determination of what is in the best interest of your child. Getting remarried or not getting remarried is not necessarily a predictor of what the Court will decide one way or the other.

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Illinois Carjacking Trial Begins Without Defendant – Trial in Absentia

CC image Wikipedia.orgA criminal case surrounding the carjacking of a young mother began Tuesday in Cook County, despite the fact that the defendant was nowhere to be found.

Michael Buhrman, 31, was scheduled to appear in court Tuesday on charges stemming from an incident in which he allegedly carjacked a vehicle in a parking garage at gunpoint.

According to the plaintiff, she was spending her work break in her car when an old man approached her to see if she needed any help.  The woman got out of the car to speak to the man, and he pulled out a handgun.

The man sped off in her vehicle, but he was stopped by police a few minutes later.  When they approached the car, they noticed that Buhrman had a handgun and a latex mask on the passenger’s seat.

It’s uncertain if Buhrman stole the idea from Tom Cruise in Mission Impossible III, but prosecutors weren’t given the opportunity to ask about the mask because Buhrman failed to show up for court.

His absence was hardly unexpected though, as he hasn’t been seen since last September.  On the last day he was seen, authorities got a signal from Buhrman’s court ordered GPS anklet that someone was attempting to tamper with the device.  When authorities arrived on the scene, the only thing they found was a detached GPS bracelet.

Buhrman is being tried in absentia, meaning the court views his decision not to show up as an indication that he is waiving his right to appear.  The trial is expected to conclude within the week.

Attorney Brett Appelman comments

This sounds like something straight out of Law and Order.

When a defendant is initially being addressed by the judge, they are told “if you fail to appear we can go ahead and hold your trial without you.”  We hear this all the time, but what does it actually mean?

A criminal defendant who skips town and fails to appear at their trial can literally be tried, found guilty, and sentenced without even being in court.  It is called a “Trial in Absentia”, and they happen with some regularity.  If you fail to show up for your trial, you are assumed to have waived your right to appear, meaning that the judge will believe that you willingly decided to not show up and defend yourself.  The trial will commence without you.

In this case, the alleged car-jacker has fled and has not appeared for his trial.  His lawyers will put on his defense and try to win the trial, but having an absent defendant makes their job much harder.  A jury is not likely to look favorably upon a defendant that has run away from his own trial.

If he is found guilty, the judge will hand down a sentence, and if this defendant is ever caught he will serve that sentence, be it probation, fines, or more likely in this case, prison time.

Related source:  Chicago Tribune

Illinois Marijuana Laws

Wikipedia.orgThis post was written by Miriam Szatrowski, a criminal defense attorney at Appelman & Associates.  Miriam has a wealth of experience in the criminal and civil courts, and she specializes in DUI, drug, and traffic offenses.  She has also served as an Assistant Public Defender in Kane County.  For more information about Miriam, check out her bio or give her a call at (630) 717-7801.

Recently, marijuana legalization has been a hot topic news articles, political debates, and casual conversations. This is largely due to rapidly changing attitudes toward marijuana in the United States. According to an April 4, 2013 article in the Chicago Tribune, the majority of American adults (52%) now support legalization of marijuana.

Though marijuana possession remains illegal under federal law, a number of states have legalized medical marijuana possession, and a few have even legalized it for recreational use. Despite these changes in public opinion, Illinois still criminalizes marijuana possession. I regularly defend people charged with violations of these laws, and in that process I have come across a number of questions from clients, as well as misconceptions about the law in Illinois. The following Marijuana FAQ can give you the information you need to avoid becoming my next client.

Is it ever legal to possess marijuana in Illinois? What about medical marijuana?

It is still a crime to possess marijuana in Illinois. There is no medical exception. There is no “personal use” exception. Possession of any amount of cannabis is illegal under Illinois law.

Aren’t there some cities and towns where you can only get a ticket?

Some towns and cities have local laws that allow police to write tickets instead of making arrests when people are caught in possession of small amounts of cannabis. Unfortunately, these local laws are often misunderstood. First of all, they are all different. An amount that is eligible for a ticket in one place may not be in another. The maximum amounts vary from 2.5g to 30g. In addition, there are many circumstances that can affect your violation, including:

  • Your age
  • The location you were caught (airport, school, park)
  • Prior convictions

Finally, almost all, if not all, leave the decision of whether to arrest or ticket to the individual officer’s discretion. That means that even if you are eligible for a ticket only, the officer can decide to arrest you and have you charged under state law.

Can I be arrested just for being “high” or having marijuana/THC in my system?

Having marijuana or THC in your system is not a crime in and of itself. However, there are local ordinances in some places regarding being “intoxicated” in public, or in the roadway. Also, if you drive with THC in your system, whether or not you are actually impaired, you are committing a DUI.

What are the penalties for violating Illinois marijuana laws?

Illinois laws focus on two things: how much you have, and simple possession v. manufacture/delivery. Generally the more you have, the more serious the crime, and if you are manufacturing it, delivering it, or possessing it with the intent to deliver it, it is treated as a more serious crime than if you simply possess it. Also, the crime is not just possession of cannabis, but possession of a substance containing cannabis. This means that if you use a misdemeanor amount of cannabis to make a pan of pot brownies, you are now in possession of a much heavier substance containing cannabis, and could be charged with a felony!

The penalties are all laid out in two sections of the Cannabis Control Act: 720 ILCS 550/4 and 720 ILCS 550/5. The table below contains a summary of the laws and maximum penalties. However, most people do not get the maximum penalty. People charged with misdemeanor possession rarely go to jail, and even those with lower level felonies often get probation if they have no criminal history. However, even sentences that don’t involve serving time can include steep fines, classes or drug treatment, random drug tests, and community service. Also, repeat offenders often get harsher penalties than first-time offenders.

Possession of x grams Manufacture/ Delivery Class Maximum Penalty (Note: IL laws may have changed since this was written, and certain factors that were not included in this table may enhance the charge to a higher level crime.)
x ≤ 2.5 C (Misdemeanor) 30 days jail and $1500 fine
2.5 < x ≤ 10 x ≤ 2.5 B (Misdemeanor) 6 months jail and $1500 fine
10 < x ≤ 30 2.5 < x ≤ 10 A (Misdemeanor) 364 days jail and $2500 fine
30 < x ≤ 500 10 < x ≤ 30 4 (Felony) 1-3 years prison and $25,000 fine
500< x ≤ 2000 30 < x ≤ 500 3 (Felony) 2-5 years prison and $25,000 fine
2000 < x ≤ 5000 500< x ≤ 2000 2 (Felony) 3-7 years prison and $25,000 fine
5000 < x 2000 < x ≤ 5000 1 (Felony) 4-15 years prison and $25,000 fine
5000 < x X (Felony) 6-30 years prison and $25,000 fine

How can I protect myself?

There are a number of things that you can do to avoid being charged with a violation of these laws. Here are some tips:

1.  Don’t possess cannabis. This means don’t have it in your car, your home, or your pocket. Please, please, please don’t have it anywhere at school!!! Don’t agree to hold it for a friend. (Remember, possession is the crime, not ownership. “It isn’t mine,” is not a defense.) Unfortunately, this may not be enough to protect you, so read on.

2.  Do not use cannabis in your car, or let anyone else use it in your car. Smoking marijuana leaves a strong, distinct odor that gets into the fabric in your car and doesn’t go away for a week or more. Every police officer knows the smell, and smelling it gives them probable cause to search your car.

3.  Do not ride in anyone else’s car if it smells like someone has been smoking marijuana in it. If they get pulled over and the car is searched, and the police find something near where you are sitting, you could be blamed for it.

4.  Never, EVER consent to a search of your body, your clothes, your bag, your car, or your home! This is important even if you are sure the police won’t find anything illegal. You never know if someone else has left something in your car that shouldn’t be there. (“I didn’t know it was there!” only works if the jury believes you.) Think it can’t happen to you? I have represented many clients who thought it couldn’t happen to them, either.

You don’t have to be rude, and you should never physically resist. Just say, calmly and politely, “I do not consent to a search.” Repeat if necessary. If they search anyway, your lawyer can fight it in court.

5.  Do not answer police questions. Give your name and identification if asked for it. Other than that, if the police stop you and try to talk to you, ask them, “Am I free to leave?” If they say, “yes,” walk away. If they say, “no,” tell them you will not answer any questions without a lawyer present. Do not lie, or give a false name or identification card, or you could find yourself charged with more crimes.

Talking to police never makes things better, and often makes it worse, even if you are completely innocent. I can’t tell you how many times I have had a case that we could have easily won if my client had just followed this advice. Even worse, I have had several clients talk themselves into more serious charges.

6.  Finally, if you or someone you know is charged with any crime, talk to an experienced criminal defense attorney right away to make sure that you get the best possible outcome for your case.

Am I a candidate for an uncontested divorce?

Commons.Wikipedia.orgAlmost by its very essence, obtaining a divorce is a contested issue, thus very few people qualify for Simplified Divorce Proceedings.  I often get calls from people who want a “quick divorce” or they “had a friend who got a divorce just by filling out some paperwork”. In effect what these people are really asking is: am I a candidate for an uncontested divorce?  Yes; in Illinois if you qualify for a simplified dissolution, it can be much quicker than obtaining a traditional divorce. And yes, it is relatively easy and requires mostly just filling out some forms and filing them with the court.   That being said, most of the people who contact me are not eligible for a simplified dissolution.

If any of the following apply to you or your spouse, then you are NOT eligible for a simplified dissolution proceeding and should consult a lawyer to determine the best course of action in your impending divorce:

  • You and your spouse have been married longer than 8 years;
  • During the course of the marriage either you or your spouse: adopted a child;  gave birth to any child; or you or your spouse is currently pregnant;
  • The parties’ income is greater than $35,000.

This list in not all inclusive but just highlights the most common factors that make most couples ineligible for simplified dissolution proceedings. If you answered no to any of these, a simplified dissolution may still not be the best solution for you. It is often better to contact an experienced family law practitioner to discuss your questions or concerns and let them determine the best way to proceed.

Sean Sullivan is a Civil and Family Law Associate at Appelman and Associates.  If you would like to talk to Sean about a Family Law matter, he can be reached at (630) 717-7801.

Dog Uncovers $500,000 Worth of Opium at Chicago’s O’Hare Airport

Wikipedia CommonsLeave it to a dog named Shadow to bring illegal narcotics to light.

Shadow, a drug sniffing dog with the U.S. Customs and Border Protection alerted officials to packages of opium-soaked cloth that revealed about 30 pounds of the illegal substance.  The opium had a street value of nearly $500,000.

The packages were stopped at the International Mail Facility near O’Hare International Airport last month.

Shadow identified the first package around 2:30pm on March 15.  The package was labeled as “Hmong dresses”, and it was destined for Wisconsin.  After Shadow alerted his handlers, Customs seized the package.  Inside the box were 15 pounds of clothes, which tested positive for opium.

Shadow identified another package later in the day, this one en route to Minnesota from Laos.  The five pound package contained 10 pieces of opium-soaked cloth.

Shadow wasn’t done though, as he sniffed out two more drug packages within a half hour.

The third package, again destined for Wisconsin, was listed as “traditional medicines” on the shipping invoice. It contained 38 bags of wood chips, which tested positive for opium.  The last package was stopped on its way to Minnesota.  It was also listed as “traditional medicines”, but upon inspection it revealed 53 bags of twigs and wood shavings, which again tested positive for opium.

The last two packages weighed a combined 11 pounds, bringing the 8-year-old Belgian Malinois’ daily count to 30 pounds of opium.

Brett Appelman comments

This type of case is not too unusual these days.  With the advent of x-ray machines and other scanning technologies, combined with the use of drug dogs, sending illegal drugs through the mail has become very difficult.  Drug dealers have resorted to swallowing balloons filled with drugs, filling boxes with coffee grounds, and even using dryer sheets to sneak the drugs into the country.  Some still get through, but more and more of these packages get caught.

The next question is whether or not an arrest can be made in this case. Clearly the police will be interested in who was supposed to receive these packages, but merely being the intended receiver of a package of drugs is not necessarily illegal.  The addressee can certainly claim that they had no knowledge of the drugs, which would make the case more difficult for the State.  The state may have a tough time proving that the addressee knew about the contents, agreed to receive the contents, and attempted to import drugs.

This will likely be a very tough case for the prosecutor to win.

Related source:  Chicago Tribune