The South Carolina Bar has provided an informative overview of grandparents’ rights.

http://www.scbar.org/PublicServices/LawLine/GrandparentRights.aspx

Alex Kornfeld is a lawyer in Greenville, South Carolina.  He practices law in the areas of family law, criminal defense, 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.

 

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A LAW PROFESSOR’S COMPLETE ANALYSIS OF JAY-Z’S 99 PROBLEMS

IN THIS INFORMATIVE AND ENTERTAINING ARTICLE CALEB MASON TELLS US WHAT’S LEGALLY CORRECT ABOUT JAY’Z’S 99 PROBLEMS.

http://www.youtube.com/watch?v=WwoM5fLITfk

 

A Straightforward Explanation Of A Name Change In South Carolina

By Alex Kornfeld, Esq.  

If you would like to 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 cost $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.

Whether you have plans to change your name like Chad Ochocinco of the NFL or Metta World Peace of the NBA or whether you are changing your name to a former name you have your right to be heard before a Family Court in South Carolina. 

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

 

A Straight Forward Answer And Explanation

Alex Kornfeld, Esq. 

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 a 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 programs, 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 cost involved.  There is no flat line fee but a Defendant can expect to pay approximately $300.00 in Court cost. 

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 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 she will offer PTI on a case by case bases.  In laymen 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 lawyer in Greenville, South Carolina.  He primarily practices law in the area of criminal defense, family law, and small business law. 


[i] SECTION 16-1-60. Violent crimes defined.

For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first and second degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-930); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); criminal domestic violence of a high and aggravated nature (Section 16-25-65); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); lewd act upon a child under sixteen (Section 16-15-140); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator’s failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses.

By Alex Kornfeld

What Standard of Proof Should Public School Students Be Afforded

            Deciding whether to discipline a student when a student is charged with a crime is a daunting task of which most people would not relish.  There are many factors a school board may consider at an expulsion hearing.  Unlike a criminal case, where the State must prove all the elements of a particular crime beyond a reasonable doubt most county school boards abide by a much looser set of standards in which they generally weigh several factors and make a discretionary decision that will be in the best interest of the school district.  This decision must weigh any given number of factors including the threat the student may present to the school, safety of the student body and employees, parent concerns, any disruption caused by the student being re-enrolled in the school, the severity of the crime, the student’s past behavior, gpa and general rights.

Innocent until proven guilty.  Should this threshold be used in public schools?

Most Americans know amendments to the constitution as well as statements from the Constitution.  You will not find any language that verbatim states a defendant has a presumption of innocence and the burden of proof is on the defendant but since 1895 this has been the law of the land.  In Coffin v. United States, 156 U.S. 432, the Supreme Court held a defendant is presumed innocent and the State must prove beyond a reasonable doubt that a Defendant is guilty of the alleged crime.

On the other hand, the right to an education is not part of the United States Constitution.  It is part of several state constitutions.  In any event, this is a decision of which must weigh constitutional factors with one’s ability to continue to be enrolled in school before a criminal hearing.   A parent will most likely be of the belief that the student who is now a criminal defendant should be suspended or expelled until the matter is resolved.  On the other hand, the student will likely be discriminated against if he is not afforded a traditional education or worse yet, expelled.

A person may be considered innocent until proven guilty but that is clearly not the case in matters that are beyond the courts eyes.  The question is whether it should be?   Should a juvenile attending public school be afforded a public education while his case is pending or should the school weigh factors and make the decision that it believes is in the best interest of the greater good?

DOES A DEFENDANT WITHOUT THE MEANS TO HIRE A LAWYER HAVE A CONSTITUTIONAL RIGHT TO STATE APPOINTED COUNSEL AT A CIVIL CONTEMPT PROCEEDING THAT MAY RESULT IN HIS INCARCERATION.

By Alex Kornfeld, Esq.

When a person is behind in child support payments that person can be held in civil contempt and jailed until the child support is paid. Due to the United States Supreme Court decisions in Turner v. Rogers, 564 U.S. ____ (2011) this may all change.

In Turner v. Rogers, the South Carolina family court ordered Turner to pay $51.73 a week to Rogers to help support their child. Turner failed to pay child support several times and was held in contempt five separate times. After being held in contempt the 5th time, Turner was brought back to Court for failing to provide child support. The Judge found him in willful contempt and sentenced him to a year in jail. The Judge did not make a finding as to whether Turner had the ability to pay. The lack of the Judge’s consideration as to whether Turner could pay was at the very heart of the Court’s decision.

On the other hand, the Supreme Court held that even those without financial means to afford a lawyer do not have the right to State appointed counsel in a contempt action where there is a possibility of being jailed when the opposing party is unrepresented.

The Supreme Court looked closely at one’s ability to pay and suggested family courts consider four factors:
(1) NOTICE to the defendant that his “ability to pay” is a critical issue in the contempt proceeding;
(2) the use of a form (or the equivalent) to elicit relevant financial information from him;
(3) an opportunity at the hearing from him to respond to statements and questions about his financial status; and
(4) an express finding by the court that the defendant has the ABILITY TO PAY.
In the present case, the family court did not address the issue of whether the defendant had the ability to pay the past due child support. According to the Supreme Court, “When the parent is unable to make the required payments, he is not in contempt. (Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E. 2d 624, 626 (1983). The Court cited an article written by the Urban Institute that stated 70% of child support payments due nationwide are owed by parents with no reported income or income of $10,000 a year or less.

Therefore, a Judge who holds one in violation for failure to pay child support must not only find that one has failed to pay but also that one has the ability to pay.

This distinction may force Judge’s to hear more testimony from a defendant without the financial means for an attorney about his ability to pay child support and changes the issue from whether one has failed to pay to whether one has the ability to pay and has chosen not to.