Tuesday, January 22, 2013

The phantom driver!

You are driving along, minding your own business, when out of nowhere a car slams into you; running you off the road and into a ditch. You didn't even get a good look at them before they zoomed off, never to be seen again.
Think it couldn’t happen to you? You might be surprised to learn that close to 11% of all accident reports to police, are hit and run incidents. People are all too willing to run from the scene in hopes that they can avoid responsibility. In many cases the driver is intoxicated, uninsured, or otherwise in trouble with the law.

If this happens to you the first thing you should do (other than seek medical attention if needed) is contact the police. Make a report and provide as much detail about the other vehicle as possible. In some cases the police can track the driver down. The driver may be charged with the Class A Misdemeanor of “Leaving the Scene of an Accident” and could see a substantial fine, loss of license, and even jail time.


However, catching the driver doesn’t always help, and in some cases the driver has vanished, leaving you with medical bills and damage; or have they? You have encountered the phantom driver, and in the state of Missouri this accident may be covered on your uninsured motorist’s policy, even if you don’t know who the driver is.

 RSMo 379.203 states:

1. No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, or in the case of any commercial motor vehicle, as defined in section 301.010, any employer having a fleet of five or more passenger vehicles, such coverage is offered therein or supplemental thereto, in not less than the limits for bodily injury or death set forth in section 303.030, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. Such legal entitlement exists although the identity of the owner or operator of the motor vehicle cannot be established because such owner or operator and the motor vehicle departed the scene of the occurrence occasioning such bodily injury, sickness or disease, including death, before identification. It also exists whether or not physical contact was made between the uninsured motor vehicle and the insured or the insured's motor vehicle. Provisions affording such insurance protection against uninsured motorists issued in this state prior to October 13, 1967, shall, when afforded by any authorized insurer, be deemed, subject to the limits prescribed in this section, to satisfy the requirements of this section.
If you have been the victim of a hit and run, even if you don’t know who the driver is, you may want to contact an attorney to learn more about your legal rights under your insurance policy. Contact Joel T. Harris at Harris Law to learn more and set up a free consultation.

Sunday, January 20, 2013


Often I am confronted with the issue of relocation by one parent bound to a parenting plan. Sometimes I am asked before the parent moves, other times it is too late. My answer in either situation is this, “Strict Compliance”. What exactly does that mean? Exactly how it sounds. You cannot relocate unless you have strictly complied with the statute.
RSMo 452.377 states:
452.377. 1. For purposes of this section and section 452.375, "relocate" or "relocation" means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.
2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:
(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
(2) The home telephone number of the new residence, if known;
(3) The date of the intended move or proposed relocation;
(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and
(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

 The problems most often encountered are:
“I can’t give 60 day notice”
“I don’t know the address”
“I don’t know when I am going to move”
“The other parent will not cooperate with a new schedule”
While the list goes on and on, be rest assured, the Court has heard it before. The truth is that relocation isn’t easy when a parenting plan is involved. Parent’s that constantly find themselves in conflict with each other can expect to have a fight when they attempt to move.
The statute goes on to say:
3. A party required to give notice of a proposed relocation pursuant to subsection 2 of this section has a continuing duty to provide a change in or addition to the information required by this section as soon as such information becomes known.
4. In exceptional circumstances where the court makes a finding that the health or safety of any adult or child would be unreasonably placed at risk by the disclosure of the required identifying information concerning a proposed relocation of the child, the court may order that:
(1) The specific residence address and telephone number of the child, parent or person, and other identifying information shall not be disclosed in the pleadings, notice, other documents filed in the proceeding or the final order except for an in camera disclosure;
(2) The notice requirements provided by this section shall be waived to the extent necessary to protect the health or safety of a child or any adult; or
(3) Any other remedial action the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.
5. The court shall consider a failure to provide notice of a proposed relocation of a child as:
(1) A factor in determining whether custody and visitation should be modified;
(2) A basis for ordering the return of the child if the relocation occurs without notice; and
(3) Sufficient cause to order the party seeking to relocate the child to pay reasonable expenses and attorneys fees incurred by the party objecting to the relocation.
6. If the parties agree to a revised schedule of custody and visitation for the child, which includes a parenting plan, they may submit the terms of such agreement to the court with a written affidavit signed by all parties with custody or visitation assenting to the terms of the agreement, and the court may order the revised parenting plan and applicable visitation schedule without a hearing.
7. The residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation. The person seeking relocation shall file a response to the motion within fourteen days, unless extended by the court for good cause, and include a counter-affidavit setting forth the facts in support of the relocation as well as a proposed revised parenting plan for the child.
8. If relocation of the child is proposed, a third party entitled by court order to legal custody of or visitation with a child and who is not a parent may file a cause of action to obtain a revised schedule of legal custody or visitation, but shall not prevent a relocation.
9. The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.
10. If relocation is permitted:
(1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants* otherwise; and
(2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.
11. After August 28, 1998, every court order establishing or modifying custody or visitation shall include the following language: "Absent exigent circumstances as determined by a court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:
(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;
(2) The home telephone number of the new residence, if known;
(3) The date of the intended move or proposed relocation;
(4) A brief statement of the specific reasons for the proposed relocation of the child; and
(5) A proposal for a revised schedule of custody or visitation with the child. Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of a child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice.".
12. Violation of the provisions of this section or a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree. In addition, the court may utilize any and all powers relating to contempt conferred on it by law or rule of the Missouri supreme court.
13. Any party who objects in good faith to the relocation of a child's principal** residence shall not be ordered to pay the costs and attorney's fees of the party seeking to relocate.

Each of the above mentioned problems encountered are covered by the statute, even if it is not obvious. If you are thinking of relocating, contact Harris Law and set up an appointment to speak with an attorney. For a nominal fee an attorney can help you better understand the statute and case law that make this process so difficult.

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