Information from the Johnson County, Kansas Law Library

1. Warnings about using court forms.

• State laws and court rules can be very complicated. You could lose your case if you do not follow the laws, rules, or procedures.

• It is always best to talk to an attorney about your problem before filing a case or before responding to a case filed against you. You should also talk to an attorney if you do not know which form to use, what to write on a court form, or what to do with the form.

• Using court forms does not guarantee that you will get what you want.

• Carefully read the instructions for each court form before you fill it out.

• Be sure you fill out the forms completely and accurately.

• When you sign a court form, you are stating to the court that everything you wrote on the form is true and accurate.

• A judge can penalize you if you intentionally provide false information on a court form.

• It is illegal to sign another person’s name on a court form or other paper filed in court.

• If you file a court form or other document at the district court clerk’s office, you must always deliver a copy of that form or paper to the other person or persons involved in the case or the other person’s attorney. This may be done by mail or in person.

• Always keep a copy of any papers you file at the district court clerk’s office.

2. Judges and court staff cannot give you legal advice.

• Under state law and rules, judges and court staff cannot give legal advice. For example, judges and court staff cannot tell you whether you should file a case, what you should put in your written documents, or what you should say or ask in court. Why? Because: Judges and court staff must not take sides in any case. It would be unfair for judges or court staff to give one person an advantage over another person in a court case. If court staff gives you advice and it turns out to be wrong, you could lose your case.

3. Court staff cannot:

• Interpret the meaning of laws or court decisions.

• Perform legal research for a person involved in a court case.

• Predict the outcome of a case, a paper filed, or some other action in a case.

• Recommend whether you should file a specific paper.

• Recommend what words or phrases you should use in a paper.

• Recommend persons you should file a lawsuit against.

• Recommend types of claims or arguments you should include in papers or at trial.

• Recommend how much money you should ask the court for.

• Recommend questions you should ask witnesses or other parties.

• Recommend ways to present evidence in papers or at trial.

• Recommend how to defend against arguments made by the other party in papers or at trial.

• Recommend when or whether you should ask to reschedule a hearing or trial.

• Recommend when or whether you should agree to settle a case with the other party.

• Recommend whether a party should appeal a judge’s decision.

• Fill out a form for a person involved in a case.

4. Court staff can provide this kind of help:

• Provide forms that the Kansas Supreme Court has approved for helping self represented court users.

• Answer questions about where to write in particular types of information on court forms but not what words to use when filling out the forms.

• Define terms commonly used in court.

• Provide phone numbers for lawyer referral services.

5. You cannot talk to the judge about your case unless all parties and attorneys are present.

• Under this rule, you cannot communicate with the judge about your case by e-mail or regular mail unless you send copies of your e-mail or regular mail to the other people involved in your case. You cannot talk with the judge about your case by telephone or in person unless all other parties are on the phone at the same time or in the same room together.

• This rule is important because it prevents a person or an attorney from giving information to a judge that the other side does not know about, which would be unfair to the other side.

• If you want to give the judge information you think is important for your case, or you want the judge to take some action related to a case, you must: (1) Put the request in writing (2) File it in the clerk’s office; and (3) Provide copies to the other parties and attorneys in your case.

If You are Representing Yourself at a Hearing or Trial:

6. Be prepared.

• Keep your papers organized.

• Know what evidence you need to prove your case. If possible, talk with an attorney before you go to court. Ask the attorney how to present your case, what questions to ask in court, and other matters.

• Bring documents and witnesses that will help prove your claim or defend against the claim.

• Bring at least three copies of each document you want to use as evidence: one for you, one for the other party, and one for the judge.

• If a witness refuses to come to court to testify, you can have the court issue a subpoena (an order to come to court) before the day of the trial. Make sure to ask the clerk’s office for a subpoena several days before your hearing.

• Bring physical evidence. This includes a canceled check, contract, or invoice related to your case. Photographs are also important. If you ask for money for damages to an item, bring the damaged item or, if this is not possible, bring photographs of the damaged item. If possible, bring a photograph of the object before it was damaged. It is also a good idea to bring defective parts, if they are related to the case.

7. Be on time.

• If you are not in court when your case is called and the other party is present, the judge might enter a judgment against you.

• If neither party is on time, your case might be skipped. You might have to wait until the very end of the court session that day before your case is called again, or you might even have to come back on another day, possibly a few weeks later.

8. Know and follow court rules.

• Judges cannot make exceptions for people without attorneys. You could lose your case if you do not follow the correct procedures. Know the rules!

9. Be courteous and respectful.

• Make a good impression on the judge. The best way to act in court is to be courteous and respectful to everyone. A judge can hold a person “in contempt of court” for bad behavior. This could result in a fine or time in jail.

• Wait for your turn to speak. Do not interrupt the judge or the other party. The judge wants to hear from each party and each person wants and needs an opportunity to speak without being interrupted. If you interrupt others in court, the judge will stop you and instruct you to wait your turn.

• Turn off your cell phone.

10. Dress appropriately.

• Courts emphasize civility and good manners. You should wear an appropriate suit or sport coat, if you have one. Otherwise, wear nice, clean, casual clothes and shoes.

• Remove your hat or cap while you are in the courtroom or in the judge’s office.

11. Speak loudly and clearly.

• Many people are nervous when they are in court and they tend to speak softly. Judges and other

litigants need to hear the facts correctly. The other party needs to hear you correctly so he/she can respond appropriately and accurately to your statements. The judge needs to hear you clearly so that he/she can make a correct ruling.

What to do if You Cannot Attend the Hearing:

12. You must inform the court and request a new hearing date.

• You must have a very good reason to reschedule any court hearing.

• To reschedule a hearing at the last minute, there must be an emergency. You should immediately call the district court clerk’s office where your hearing is scheduled. Calmly explain your problem and ask to reschedule the hearing or trial. Court staff will write down the request and contact the judge. The judge will decide whether your reason for changing the hearing or trial date is serious enough to grant your request. Give the clerk a phone number where you can be contacted that day.

• If something very important comes up two or more days before the hearing, i.e., a death in the family or an accident that puts you in the hospital, you must submit your request for a new hearing date or time in writing and file it with the district court clerk. (1) Do this as soon as you know you need to reschedule the hearing. (2) Deliver a copy of your request to the other party. (3) Also, it’s more likely a judge will agree to your request if you get the other party to sign a written agreement to change the hearing time or date and include it with your request for a new hearing date. (4) The clerk will give your request to a judge. Because judges are busy, you probably won’t get an answer right away.

NOTE: If you do not show up for the trial at the time it is scheduled and the other party does show up, the judge may enter a judgment in favor of the other party.

Kansas Judicial Branch

Kansas Statutes

Kansas Coffee Company

Johnson County Court Forms

For most divorcing parents, or for separating but never married parents, the most important issues are those of child custody, residency and parenting time. The parents worry about the well being of their children and how they may be affected by the divorce or separation. I, Darrell Smith, am a veteran child custody lawyer. I work hard for you, first to protect your legal rights and secondly to help you have the ability to co-parent your child with the other parent after the divorce.

The Kansas courts usually award both parents joint legal custody - the right to make major decisions, such as for example, the education, religion, health care and activities in a child’s life.

Therefore, the most contentious issues usually concern the residency and support of the child. Will the child reside primarily with the mother, primarily with the father, or will the child reside with each parent about half of the time (“shared residency”)? What are the financial and emotional consequences of these various residency choices?

If the parents can cooperate and respect each other and can respect the child’s right to have an ongoing relationship with the other parent, the issues of residency and support can often be resolved through negotiation or collaboration. Collaborative law is a relatively new approach to resolving family law and child custody issues through a series of 4-way meetings with the two parents and their respective attorneys.

If negotiation or collaboration is not appropriate in a particular case, then the issues must be resolved in court. Darrell Smith is also an experienced litigator and strong advocate with a record of success at trial.

Having earned a reputation as tough yet reasonable, you can be assured that Darrell Smith will be your advocate in the courtroom as he works to protect your rights and the interest of your children.

]]> http://darrellsmithlaw.com/practice-areas/child-custody/feed/ http://darrellsmithlaw.com/practice-areas/child-support/ http://darrellsmithlaw.com/practice-areas/child-support/#comments Fri, 20 Mar 2009 07:29:21 +0000 admin http://www.darrellsmithlaw.com/?p=93 Child Support

Child support is often a central issue in both custody and divorce proceedings. Hiring a qualified attorney is a crucial step in ensuring that you are either receiving or paying reasonable and fair child support. Our office handles an array of child support matters, and will be able to assist you with your temporary and permanent child support needs, as well as any child support modifications with which you may be entitled to.

Factors including, but not limited to, the following may be grounds for a modification of child support:

• Either parent’s income has increased or decreased significantly
• The parent and/or children have recently moved a considerable distance.
• The children enter a new age bracket (Under 5; 6 to 11; 12 to 18).
• Cost of insurance coverage has changed.
• Work-related childcare expenses have changed.

Please contact our office to further discuss your child support needs.

If your child has been arrested, the first thing you need to do is find out why he or she was taken into custody and how to get your child released.

If your child has been charged with a very minor misdemeanor, and this is his or her first offense, it may not be necessary to retain an attorney. However, if your child has been charged with a felony, a misdemeanor which could involve probation, or a second charge for any misdemeanor, I recommend that you consult with a juvenile defense attorney.

Juvenile law previously recognized that children younger than eighteen years of age make mistakes and, therefore, should not be punished like adults. However, the law has changed and now young people are being charged and sentenced like adults if they are accused of committing certain crimes. Even if not treated as an adult, a juvenile in Kansas may be subject to the juvenile sentencing matrix.

The prosecutor, upon motion, may file criminal charges in adult court against a juvenile. If convicted, the court must sentence the juvenile in the same manner as adults.

Options are available to negotiate a juvenile court sentence or to challenge the evidence at trial, just as in adult cases. If you need legal help, please contact my office for consultation.

In addition to juvenile defense work, my juvenile law practice also includes:

• Representing parents in Child in Need of Care (CINC) cases – family situations where allegations of abuse or neglect have been made, and the juvenile court intervenes to protect the family’s children.
• Serving as a guardian ad litem in divorce cases – representing children to assure that decisions are made in the best interest of the children. This requires attending special continuing legal education seminars to remain qualified to represent children.

Representation in Kansas Juvenile Court
Terms You Should Know

Guardian ad litem: A lawyer who represents your child in court for free.

Diversion: In juvenile cases, if the young person is sentenced to a diversion program and he or she successfully completes it, there will be no permanent court record. Different diversion programs have different requirements, which may include work, study, treatment, or counseling.

Probation: In a juvenile law case, if the young person is assigned to probation he or she will be required to complete specific activities and to check in with a probation officer at a specified time. Probation does appear on a juvenile’s criminal record.

SRS Custody: If a child is removed from your home, he or she is placed in the custody of the Kansas Department of Social and Rehabilitation Services (SRS).

Case Plan: If your children have been removed from your care, you and your attorney will work with a social worker to develop a case plan, a formal plan will be approved by the court to get your children returned to your home.

Reintegration Plan: If you have followed your case plan, a formal plan will be approved by the court to get your children returned to your home.

The Law Offices of Darrell Smith are conveniently located at 102 S. Cherry in Olathe, right across the street from the Johnson County Courthouse and a few blocks from Olathe Municipal Court.

A speeding or traffic ticket in Kansas can negatively affect you in many ways. First, it may cost hundreds or thousands of dollars in fines and court costs. Second, a speeding or traffic ticket might also cause your insurance rates to go up which could mean thousands of dollars in additional premiums over a period of several years. You may also have to wait in court for hours waiting for your case to be called, costing you time and credibility at work. Finally, if you receive too many speeding tickets or other moving violations, your license could be suspended, causing you and your family a significant hardship. Darrell Smith offers a resolution to help alleviate these concerns.

The time to ensure that a moving violation stays off your record is before you pay the ticket. Once you pay the ticket in Kansas, it counts as conviction on your driving record. Since convictions for moving violations are reported to the state, your insurance company will have access to your record and so will your employer.

Hiring an experienced speeding and traffic attorney for your ticket will help insure that your rights are protected and your case is resolved in the best manner possible. Possible remedies for speeding or traffic tickets in Kansas include diversion or amendments to non-moving violations that usually keep the traffic ticket from affecting your insurance rates. This will likely save you considerable money in the long run.

For instance, Darrell Smith can often amend a speeding ticket in Olathe to illegal parking, which is a non-moving violation and will not affect your insurance rates. Violations such as no proof of insurance, driving while suspended or expired tags may be dismissed or offered a diversion after Darrell has a chance to speak to the prosecutor about your case.

Darrell Smith has handled traffic ticket cases that involved:

• DUI
• Driving under the influence of drugs
• Minor in possession (MIP) of alcohol
• Consumption of Alcohol by a Minor
• Refusal to Submit to a Preliminary Breath Test (PBT)
• Transporting an open container

Darrell Smith has handled traffic ticket cases that involved:

• Speeding
• Reckless driving
• Speed greater than safe
• Driving without liability insurance
• Ordinance violations
• Accident tickets
• Suspended or revoked driver’s license
• Drug possession
• Possession of drug paraphernalia

In most cases you will not have to appear in court.

If you are arrested for DUI, two distinct and separate legal processes begin simultaneously:

• The Criminal charges which can result in fines, jail time, and the suspension and restriction of your driving privileges; and
• The Administrative Proceedings (civil-side) which can result in the suspension and restriction of your driving privileges.

The length of the suspension and/or restriction of your driving privileges resulting from the Administrative Proceedings depends upon:

• Whether you refused or failed the breathalyzer
• Whether this is your first DUI arrest or you have a prior diversion and/or convictions, or you have received a prior administrative suspension of your driving privileges; and
• Whether you are over or under 21 years of age at the time of the test failure or refusal.

The time of suspension of driving privileges, depending on these factors, ranges from 30 days to permanent revocation of your driver’s license. You have a right; however, to an administrative hearing in which you can challenge the grounds upon which the State of Kansas is trying to suspend or restrict your driving privileges. If you are successful at this hearing, the administrative action against your driving privileges will be dismissed.

DC-27

At the time of your arrest, the officer should have given you a pink sheet called the DC-27. As set forth on the back of that form, you must send a request for an administrative hearing to the Kansas Department of Revenue within 10 days of the day that you received the DC-27. In this request, you need to specify that your hearing be in person before a representative of the Department of Revenue. Failure to request an in-person hearing will result in the hearing being held over the telephone.

Failure to request an administrative hearing will bar you from challenging the administrative suspension of your driving privileges. If you have requested an administrative hearing, your driving privileges will continue in full force and effect until 30 days after the administrative hearing.

At this hearing, a number of issues can be raised to oppose the suspension of your driving privileges, including but not limited to:

• Whether the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol/drugs or a combination of both
• Whether you were given the statutorily required notices
• Whether your actions constituted a test failure or refusal
• Whether the testing equipment, testing procedures, and the officer operating the machine were certified/approved by the Kansas Department of Health and Environment (KDHE)
• Whether the test result was .08 or greater
• Whether your constitutional rights were violated

To preserve your rights and strengthen your defense, an experienced Kansas DUI attorney is highly recommended. I have been involved as either a prosecutor or defense attorney in over one thousand DUI cases.

I will aggressively defend your rights if you are accused of drunk driving and other alcohol related-offenses. I will work to:

• Ensure your constitutional rights are upheld
• Ensure the evidence against you is collected and preserved in a legal manner
• Ensure that you are provided a fair trial
• Appeal any errors committed by the court or its participants

As a member of the National Association of Criminal Defense Lawyers, I have attended National Seminars focused exclusively on this subject.

Why hire a DUI lawyer?

A DUI charge is a misdemeanor. If you plead guilty to a misdemeanor, you will have a criminal record. Some prosecutors will require you to plead to the misdemeanor if you don’t have a lawyer.

In addition, a DUI lawyer will save you money and time, and in most cases keep you from getting a criminal record. In some cases we can get you a deal where you would plead to a violation. This makes sense for some of our clients. Due to changes in Kansas DUI laws, we now advise most of our clients to fight DUI cases.

DUI charges have become a very serious matter, costing a first-time offender as much as $5000 or more in fines, surcharges, higher insurance premiums, other charges, and prospect of a criminal record. With that much at stake, it’s worth it to hire a DUI lawyer.

Potential Criminal Penalties

The Criminal aspect of a DUI includes fines, mandatory jail time, suspension of your driving privileges, and the potential impoundment of your vehicle. The amount of fine and length of the jail sentence are determined by the number of prior DUI convictions/diversions you have had during your lifetime. It no longer matters whether a prior conviction was outside of five years. Under current Kansas law, all prior DUI convictions and DUI diversions count towards enhancing (increasing) the criminal level of the DUI being charged, regardless of how long ago they occurred.

K.S.A. § 8-2,144 provides:

First Conviction: A first lifetime conviction for DUI is a Class B misdemeanor. The potential sentence is 48 hours to six months in jail, and a fine between $500 and $1,000. You must serve at least 48 hours in jail, unless the court approves a request to perform 100 hours of community service instead. On the administrative side, upon a first conviction your driving privileges will be suspended for 30 days, followed by 330 days of restriction for a test failure. For a test refusal, driving privileges will be suspended for a full year. You will also be required to undergo a drug and/or alcohol evaluation and will have to complete the treatment that is recommended by the evaluator.

Please note that the foregoing information presumes that you provided a sample of breath in excess of .08% alcohol – but less than .15% alcohol. The Kansas Legislature recently enacted significantly greater penalties for drivers who test either at or above .15%.

If you test at or above .15% for your first offense: you face suspension of your driving privileges for a full year followed by an additional year of driving a vehicle only if it is equipped with an ignition interlock device.

Second Conviction: A second lifetime conviction for DUI is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1,000 and $1,500. Providing that you enter into a substance abuse treatment program, you must serve at least five days in jail, but after 48 hours the judge can order that the remainder of the sentence be served on house arrest or in a work release program. Upon a second conviction, your driving privileges will be suspended for one year followed by at least one year of interlock restrictions for a test failure and driving privileges are suspended for a full two years for a test refusal.

If you test at or above .15% for your second offense: you face suspension of your driving privileges for a full year followed by an additional 2 years of driving a vehicle only if it is equipped with an ignition interlock device.

Third Conviction: A third lifetime conviction for DUI is a felony. The potential sentence is 90 days to one year in jail, and a fine between $1,500 and $2,500. After completing 48 hours in jail, the court may order that the remainder of the sentence be served on house arrest or in a work release program. Upon a third conviction, the term of suspension is the same as for a second offense for a test failure: your driving privileges will be suspended for one year followed by at least one year of interlock restrictions. For a test refusal, the term of suspension is 3 years.

If you test at or above .15% for your third offense: you face suspension of your driving privileges for a full year followed by an additional 3 years of driving a vehicle only if it is equipped with an ignition interlock device.

Fourth or Subsequent Conviction: A fourth or subsequent lifetime conviction for DUI is also a felony. Like a third conviction, there is a sentence of between 90 days and one year in jail, however the fine is a flat $2,500.00. You must serve 72 hours in jail prior to the court being able to grant work release for the balance of your sentence (house arrest is not allowed). Upon a fourth conviction, driving privileges are suspended for one year followed by at least one year of interlock restrictions for a test failure. For a test refusal, the term of suspension is 10 years. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test.

If you test at or above .15% for your fourth offense: you face suspension of your driving privileges for a full year followed by an additional 4 years of driving a vehicle only if it is equipped with an ignition interlock device.

Kansas is a “no fault” divorce state, which means that you will not have to prove to the court why you are entitled to a divorce. But there are other issues that must be decided, either by the couple themselves or by a judge with the assistance of legal counsel.

Judges have broad discretion in divorces, so it is important to be proactive in advocating your legal rights. Although each spouse has rights, whether or not those rights are fully recognized is an entirely different story. Having experienced counsel significantly impacts how your rights are protected and ensured.

Experience is critical when one faces criminal charges, so you want the most experienced criminal defense attorney. Darrell Smith has represented thousands of defendants in Johnson, Douglas, Franklin, and Miami Counties and knows the criminal justice system in Kansas. His office is based in Olathe, Kansas.

Darrell held positions as an Assistant District Attorney in Johnson County, Kansas (1988-1995) and Assistant County Attorney in Miami County, Kansas (1986-1988) prior to starting his own practice. He is also a long-term member of the National Association of Criminal Defense Lawyers. Darrell Smith can put his knowledge of the system to work for you.

It is necessary to develop the best defenses prior to discussing settlement or going to trial. From the moment of your charging, through trial, Darrell will put his extensive trial and jury experience to use in your defense.
My success in the Criminal Defense arena is due in part to my extensive investigation process. I will:

• Interview witnesses
• Review Your case file
• Investigate backgrounds
• Investigate the circumstances of the arrest

Plea Bargaining

Sometimes a criminal defendant and the prosecution can negotiate an agreement that resolves the criminal matter. Usually, the prosecutor agrees to reduce a charge, drop some of multiple charges or recommend a more lenient sentence in exchange for the defendant’s guilty plea; often to a lesser offense or to fewer than all offenses charged. But negotiation is not a haphazard process; a seasoned criminal-defense attorney is a real advantage to a criminal defendant throughout the plea-bargaining process.

Plea Bargaining

Many negative consequences can result from a criminal conviction. One of the most obvious is the sentence the court will impose. A sentence can include incarceration, fines, court costs, restitution, probation or, in some jurisdictions, death. The less obvious consequences involve social stigma or estrangement from family, friends or professional colleagues. A person with a criminal record may also have trouble with employment, insurance, credit or housing. If not a U.S. citizen, he or she may become ineligible for citizenship. He or she may lose or become ineligible for professional licenses, welfare benefits, or firearms. Because of the potentially devastating consequences of a conviction, it is in the best interests of a defendant to have a strong, experienced attorney at his or her side to fight to preserve legal and constitutional rights every step of the way.

I have the resources and experience to handle any type of criminal allegation, including:

• Aggravated discharge of firearms
• Arson/ Aggravated arson
• Battery/ Aggravated battery
• Child abduction
• Conspiracy
• Credit Card Fraud
• Criminal Trespass
• Deadly Weapons
• DUI
• Embezzlement
• Firearms
• Forfeiture
• Forgery
• Home Invasion
• Kidnapping
• Murder for hire
• Murder / Homicide
• Possession with intent to distribute – Ecstasy, cocaine, party drugs, narcotics, hallucinogens
• Retail theft
• Robbery
• Sex offenses – Aggravated sexual abuse, rape, predatory criminal sexual assault, prostitution, child pornography, cybersex offenses
• Stalking
• Theft/ Theft by deception
• Unauthorized use of weapons
• White-collar crime

Johnson County District Court
100 N. Kansas Ave.
Olathe, KS 66061
http://courts.jocogov.org/

Miami County District Court
120 S. Pearl
Paola, KS 66071
http://www.miamicountyks.org/attorney.html

Franklin County District Court
301 S. Main Street
P.O. Box 637
Ottawa, KS 66067
(785)242-6000
http://www.kscourts.org/dstcts/4frco.htm

Douglas County District Court
111 E. 11th Street
Lawrence, KS 66044
(785) 832-5256
http://www.douglas-county.com/district_court/dc_home.aspx