The Adam Walsh Child Protection Act has been in legal news because of the implication that it is in effect an ex post facto law. This issue has yet to be completely dealt with because even though the bill was authorized by the US Congress and Senate with subsequent Presidential signature, the US Supreme Court is the ultimate decision maker regarding constitutionality. At the time of this writing, the Supreme Court has yet to rule with finality one way or the other regarding the Adam Walsh Act.
This legislation has much in common with the International Marriage Broker Regulation Act because it inhibits a US Citizen’s ability to file an immigration petition on behalf of an alien family member.
Under relevant sections of the Adam Walsh Child Protection Act, Lawful Permanent Residents and US Citizens who have been convicted or plead guilty to a “specified offense against a minor” are precluded from acquiring approval of any immigration petition based on any sort of underlying family relationship. The Adam Walsh Act also bars U.S. citizens convicted of these aforementioned offenses from filing non-immigrant visa petitions that would categorize their fiancees, spouses, or minor children as eligible for “K” non-immigrant status (K1, K2, K3, K4).
The distinction between the restrictions imposed by the IMBRA and the Adam Walsh Act should not be overlooked. Whereas the International Marriage Broker Regulation Act has an impact mostly upon petitioners for K-1 and K-3 visas, the Adam Walsh legislation places limitations on potential petitioner of every family oriented immigration application, which includes the CR-1 and IR-1 visas.
There are certain offenses that have been deemed “specified offense[s] against a minor” that would cause the bar to become operative. The following is a non-exhaustive list of offenses that could cause a visa petition to be denied based upon the Adam Walsh Act: kidnapping or false imprisonment (unless committed by a parent), sexual solicitation, solicitation to engage in acts of prostitution, offenses involving child pornography, or anything that is determined to be an offense involving sexual conduct against a minor.
It might be wise to retain the services of an experienced immigration attorney in situations where the prospective petitioner is unsure whether he falls under the provisions of the Adam Walsh Act. In a case in which it is decided that the offense will prohibit a visa application’s approval pursuant to the act, it might be feasible to acquire a waiver of the finding of ineligibility. If the waiver application is denied, then the decision cannot be appealed. In order to obtain a waiver, the petitioner must prove that he or she not a threat to the prospective beneficiary.
The content contained herein is for educational purposes only and is not to be used as a replacement for assistance of licensed legal counsel. A Lawyer-Client fiduciary duty should not be construed to have been created by merely reading this article.)
A limitation period is a stated period of time, the expiry of which extinguishes a party’s legal remedy and forbids the commencement of a legal action. Each province in Canada has general statutes of limitations and many provincial and federal statutes contain limitation periods applicable to a variety of causes of actions. Traditionally, limitation periods have been strictly enforced. More recently, the subject of when time begins to run has received greater attention from our courts.
The discoverability rule has evolved fairly recently in our civil jurisprudence.1 It gives relief in certain factual situations by extending a limitation period. According to the discoverability rule, a limitation period begins to run when the material facts upon which an action is based have been discovered, or ought to have been discovered by the plaintiff through the exercise of due diligence. The effect of the rule is to postpone the running of time until a reasonable person, in the exercise of reasonable diligence, would discover the facts necessary to maintain the action.2 It is a general rule applied to avoid injustice.
It is now over two years since the Supreme Court of Canada upheld the Ontario Court of Appeal’s decision in Peixeiro v. Haberman. Justice Major in Peixeiro adopted Taddle’s J. A.’s statement in Fehr v. Jacob (1993), 14 C.C.L.T. (2d) 200 (Man. C.A.) at 206, which is as follows:
In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action to be commenced within a specified time from the happening of a specific event, the statutory language must be construed. When time runs from “the accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.
In Peixeiro the court concluded that the limitation period under the Ontario Highway Traffic Act did not start to run in a personal injury action arising out of an automobile accident until the plaintiff discovered facts that could sustain a claim that his or her injuries met the threshold under the Insurance Act.
Since Peixeiro, the discoverability rule has enjoyed broad application in Ontario in motor vehicle actions and actions against municipalities and the provincial crown. As such there is now a body of jurisprudence on the scope and application of Peixeiro. The purpose of this paper is to review the way Ontario courts have applied Peixeiro in the context of personal injury litigation so that the parameters of the present authorities in the area of motor vehicle actions and actions against municipalities and the provincial crown can be better understood and defined
In the case of Padilla v. Kentucky, the U.S. Supreme Court held in a 7-2 decision that “[i[t is quintessentially the duty of counsel to provide his/her client with the available advice about an issue like deportation” and the failure to do so satisfies the first prong of the Strickland analysis regarding ineffective assistance of counsel. In other words a criminal defense attorney Phoenix must notify their client regarding issues of whether or not a plea carries immigration consequences. The court held that “counsel must inform their client whether his or her plea carries a risk of deportation.”
Justice Stevens even provides a practice tip and encourages criminal defense attorneys in Phoenix and other lawyers to consider immigration consequences when engaging in plea-bargaining and to do so creatively.
The Padilla decision simply reinforces existing law in states like New Mexico where counsel already has the responsibility to determine if a client is a citizen, determine the immigration consequences of the crime with which the client is charged and inform the client. But in those states that only found ineffective assistance of counsel where there was clearly incorrect advice regarding immigration consequences or though immigration consequences were collateral to the criminal defense attorney Phoenix case and therefore are not worthy of ineffective assistance analysis, this landmark decision in the Padilla case does expand the duties of criminal defense attorneys in Phoenix and nationwide.
The concurrence of Justice Alito even recognizes that “any competent criminal defense attorney should appreciate the extraordinary importance that the risk of removal might have in the clients determination whether to enter a guilty plea.”
The Supreme Court rejected the argument that immigration consequences are considered “collateral” to the criminal case and therefore not subject to the requirement of effective assistance of counsel and also rejected the notion that only “wrong” advice is ineffective.
Although the Supreme Court holds that where the immigration consequences are mandatory and clear a criminal defense attorney Phoenix or other counsel must so inform the client. The only disappointment of the opinion is the language starting that where the immigration law is unclear, a criminal defense attorney Phoenix can merely advise their client that there is a risk of adverse immigration consequences and tell their client to consult an expert. The issue with this – the client may not have the resources to hire either an immigration lawyer or a criminal defense attorney Phoenix who understands the consequences.
What is clear with the majority opinion’s extensive discussion of professional standards, is that in all cases where the defendant is not an American citizen, counsel has a duty to investigate a clients immigration status as well as the immigration consequences of the particular charges the client may be facing. Only after investigation will the criminal defense attorney Phoenix’s advice differ – it may unclear or clear, depending upon the law.
Throughout the country some public defender offices have hired an expert in the field of immigration and criminal law or banded together with offices to have such backup capability. While Justice Alito’s concurrence goes to great lengths to point out the complexity of immigration law, in fact immigration law is similar to any new area criminal defense attorneys Phoenix face, such as DNA evidence – they either learn the field or hire an individual who knows it in order to represent the client.
The challenge to criminal defense attorneys in Phoenix is to look at each client holistically and see what impact there may be from the criminal charges including immigration as well as other consequences.
Child support – When does child support end?
Many people going through a divorce or legal separation tend to be confused about when child support actually ends. The answer is that NJ child support is generally paid until the “emancipation” of the child. Since each state handles this issue differently many people enter into an agreement without knowing all of the facts. In the State of New Jersey, a child is not necessarily emancipated when the child reaches the age of 18 or when a child graduates from high school, as is the case in many other states. There is an expectation by the NJ courts that child support will continue to be paid until a child goes “beyond the sphere of influence”. This means that if a child remains dependent, child support may continue to be paid.
A few other points to keep in mind about child support is that even if you want to waive child support payments in your settlement agreement, child support is a right that belongs to the child and a parent may not waive this right. Also, keep in mind that child support does not necessarily terminate when a child enters their higher education years.
Alimony – How many years do you need to be married to be entitled to alimony?
The question of whether or not alimony (i.e. spousal support) in NJ will be paid is one of the most common questions people have when considering a divorce or legal separation. There are no definitive rules or mandates as to how long you need to be married in order for there to be an alimony award. Rather, the courts in New Jersey will examine a long list of factors which includes:
Length of the marriage; Income for each party; Age of the parties; and Health of the parties.
Generally, as the length of the marriage increases so too does the likelihood that there will be an alimony component to your settlement agreement. However, there are always exceptions. I have been involved in cases where spousal support was awarded for a 2 year marriage but not for a 30 year marriage. Every case is different and your individual circumstances should be reviewed with a Certified Matrimonial Attorney.
Child Custody – When is a childs preference taken into consideration?
It is generally the preference of the courts in the State of New Jersey to leave the children out of the litigation and the child custody decision. However, there are a number of circumstances when a judge might determine that it is both appropriate and helpful to speak with the children. A child will generally need to be 14 years or older and have a maturity level necessary to grasp the situation in order for a judge to even consider talking with the child.
Get Legal Help
The divorce and legal separation process can be very complicated so it is important to retain a New Jersey (NJ) Certified Matrimonial Law Attorney to help you through the process. Since only 2% of the attorneys in the state are Certified by the Supreme Court of New Jersey, using this criteria in selecting an attorney will point you in the right direction. This should not be your only criteria, but it will help you narrow down the list of potential attorneys to handle your matter. Also, take the time to learn about the attorney through their web-site and then schedule a free initial consultation, which many law firms offer. At this meeting, you should assess your comfort level with the attorney since you will be working closely with that professional throughout the process.
For additional information about New Jersey divorce and family law related issues or to download a free copy of my divorce guide, visit my web-site at www.weinbergerlawgrop.com.
Attorney Bari Weinberger is the Associate Author of the book New Jersey Family Law Practice, utilized by virtually every NJ family law attorney. She also served as child custody new jersey lawyer for domestic violence nj, nj restraining order