Tips to Guardianship is Different from Custody

For the sake of children
In certain courts, legal professionals have begun to use the term ‘parenting schedule’ in place of the words ‘custody’ and ‘visiting’, so as to rule out the difference between custodial and non-custodial parents, and aid better child development.
It is a little difficult to distinguish between these two legal terms, which are sometimes inadvertently used as synonyms. However, the implications of both terms are different, depending on the context of the legal issue.

Legal guardianship and custody can often be a complex scenario. In case of parents having custody of a child, legal guardianship is not generally allocated. If, for any reason, the legal custodian (either of the parent) is not able to take care of the child anymore, a third party can be appointed as a guardian. Nevertheless, in all conditions, it is seen that the orders issued by the courts are in the best interests of the child.

Guardianship Vs. Custody
The term guardianship can be referred to in three different situations: legal guardian in case of a senior (infirmity due to old age), guardian of a minor (below 18 years), guardian of a developmentally disabled adult. Here, we would consider guardianship of a minor in comparison to what is known as child custody.

Definition

Guardianship: An individual who takes care of another person or of another individual’s property is a guardian. The difference between these similar terms is made clear by the fact that, a guardian is not a parent. He/she may be a close relative of the child or parent. It is sought when caregivers intend that the child should have a permanent home, and where parental rights are not concluded. Sustaining relations with the extended family is also one of the purposes.

Custody: Here, it is simply the legal right to take care of a child (such as a child whose parents are divorced). Child custody deals with the rights and duties of both parents towards their children. It is the division of responsibility, especially as allocated between the divorcing parents.
Jurisdiction

Guardianship: Orders are given by probate courts, which primarily deal with matters of probate and administration of estates. It is generally a more precise and cohesive order, as it legally hands over the child into the guardian’s care. Guardians may also be supervised by the courts.

Custody: Allocations are made by family courts. This is most often seen to be an arrangement amongst the parents regarding the future obligations of their kids, following their divorce order.

Responsibility
Guardianship: Here, the entire responsibility of the ward rests with the caregiver. All decisions regarding the ward’s education, welfare, health, and any other tasks requiring support and maintenance come within the purview of the guardian’s duty. For example, looking after the ward’s food, clothing, shelter, educational needs, safety, protection, medical and dental care, physical and emotional growth, etc.

Custody: There are two kinds: Legal custody (who makes important decisions like education, health care, etc. for the child); and Physical custody (who the children live with). Both legal and physical custody can either be joint or solely the responsibility of one parent. Responsibilities under legal custody include school and child care, religious activities and institutions, medical, psychological or other mental health counseling or therapy needs, extracurricular activities, etc.

Decision-making
Guardianship: The guardian is authorized to take important legal decisions for the ward; for instance, regarding any property issues. He/she is rather primarily allocated that duty. Guardianship is normally both, physical and legal. It is a greater obligation than that of custody. Guardians may also require to report to the courts annually.
Custody: The custodian also has to decide for the child. However, there can be a situation where the child is with one of the parents on a weekend. So, the non-custodial parent becomes responsible for the child, but cannot take any legal decisions for the kid.

Duration
Guardianship: This can more or less be a long-lasting relation. It ends only upon either the death of the guardian, or when the minor grows into a major (adult). The court too can terminate the guardianship if the parents become capable of taking care of the child.

Custody: In case of custody, the court can order sudden modifications, changing the custody of the child, in cases of circumstantial events in the life of either of the parents.
If the best interest of the young one is kept in focus, all legal intricacies can be sorted out. It is observed that if both the parents go along well with each other, the development of children is achieved in a better way; which is also an example of the ‘reasonable visitation’ order, where visitation is kept flexible to suit the needs of the child.

Meaning of Capias Warrant Ideas

No Boundaries
There is a common misconception among people that a warrant issued in one state is not valid in another. On the contrary, any warrant issued anywhere in America is valid throughout the country, unless any law expressly states otherwise.

In this age of high-tech gadgets and a thirst for adventure, each one of us has watched at least one crime show on TV. You may have become familiar with a very common dialog repeated by the cops on the shows – “We have a warrant for your arrest. You need to come with us. This officer will read you your rights”. The word ‘warrant’ is used extensively on these programs; however, these are mostly arrest warrants. Arrest warrants are issued when a person has committed a criminal offense. However, this is not the only type of warrant there is; another one that comes very close to it in nature and is hence often confused with it is the Capias Warrant. A strange name, yes, but it has a nice meaning behind it. Curious yet? The following paragraphs answer some basic questions about a capias warrant, and also state the situations in which one may be issued.
What does a capias warrant mean?

Answer: The word capias is of Latin origin, meaning ‘for the taking of’. A capias warrant, also known as a bench warrant, is one issued by a court judge for necessitating someone’s appearance in court. If a person has failed to comply with a court order for presenting him/herself on a particular day for a particular purpose, then a capias warrant is issued against him/her.

How long does it last?
Answer: A capias warrant does not have a time limit for validity. It is indefinitely valid, i.e., it lasts forever.

What does the warrant contain?
Answer: A capias warrant must contain the following particulars.
The complete name of the defaulting person, or at least a proper description of him/her.

A statement saying that the person committed such offense, or that the court has reasonable cause to believe so.
The nature of the offense, and when and where it took place.
The name, signature, and seal of the judge issuing the warrant.

What happens after it is issued?
Answer: The person against whom the warrant is issued is arrested and detained until the violation that he/she has committed is addressed or the issue is resolved. However, the court gives the detainee a reasonable opportunity to be heard. If the court is satisfied that the detainee had sufficient cause for being unable to comply with the issued orders, then he/she may be let go. However, if the detainee is unable to present such a cause, then he/she will be punished accordingly.

How is it different from an arrest warrant?
Answer: An arrest warrant is issued when a person has been found guilty of a crime and charged. A capias warrant is issued for those who are in contempt of the court (i.e.do not follow the directions given by the court). Though the basic natures of these warrants are different, the consequences are the same. The person is arrested and detained, and subsequently tried.

When can a capias warrant be issued?
Answer: There are some specific situations under which this warrant is issued. Some of the important instances are listed below.

Violation of probation

Probation has been defined as ‘the release of an offender from detention, subject to a period of good behavior under supervision’. When a person is let out on probation, the court agrees to drop all charges if he/she abides by the conditions or restrictions put forth for the duration of such probation. These conditions can involve not dealing in drugs, not resorting to violence, not leaving the city or town of residence, visiting the probation office regularly, etc. If a probationer violates any of these regulations at any point of time, then the court can issue a capias warrant for his/her arrest. The probationer has to do subsequent jail time until any further proceedings begin.

Failure to appear in court

People are called to the court for various reasons every day. A court may order someone to appear for a proceeding or hearing, either to testify or otherwise. When such a person fails to appear, the judge can issue a capias warrant in his/her name. That person is then rounded up by the authorities and presented before the court. He/she is, of course, given a reasonable chance to be heard. The court then decides the punishment according to the nature and seriousness of the default.

Failure to pay child support

Child support is paid in case of a divorced couple having children. The spouse who does not have primary custody of the children is entitled to pay to the other, a certain amount every month, to meet the child’s basic, educational, and medical expenses. This amount is in the sole interest of the child. If the parent begins to lag behind on payments, then two courses of action can follow. One, the court can issue an arrest warrant. Two, if the other spouse lodges a complaint, then the court issues a capias warrant. If the defaulting parent can show sufficient cause for the violation, then the court will direct him/her to pay off the amount some other way. However, if he/she does not have a solid cause, then the consequences can be severe, right from having their driving license suspended to having their property seized by the court to source the funds.

Failure to pay any amount

If a person has not paid any fines in the nature of parking tickets or any other penalties for any defaults even after receiving sufficient notice, then a judge can issue a capias warrant for the presentation of this person before the court. The person is given the option of paying up, or sitting in jail until such time as he/she agrees to pay.

This was all about the capias warrant. This is a very important piece of paper that can change a person’s life significantly. This is why it is always better to obey the law rather than pay the price.

Compensatory Damages Explained

Compensatory or actual damages?
Compensatory damages are also known as actual damages, as the plaintiff only gets what he has lost; nothing more than that.

In law, the term ‘damages’ refers to the money to be paid to a person as compensation for loss or injury. Damages are categorized into two types, (i) compensatory damages, wherein the plaintiff receives compensation for the loss incurred, and (ii) punitive damages, wherein the court seeks to punish the wrongdoer (defendant) for his negligence.

What are Compensatory Damages?
Going by the simplest definition, it is the amount of money awarded to the plaintiff as the amount ‘necessary’ to cover the loss that he has incurred because of another person’s breach of duty. In other words, it’s a compensation intended to make the victim ‘complete’ in monetary terms, or revert him back to the financial position at which he was before the incident. Let’s have a look at an example to make things clear.

If Mr. X gets injured in an accident for which Mr. Y is responsible and thus, has to go on a long leave, then Mr. Y is liable to pay him the amount of money that he will lose as a result of not being able to work in the form of compensatory damages.

Compensatory damages cover medical expenses, loss of income, loss of property, as well as pain and suffering, mental anguish, and loss of consortium. In these lawsuits, the onus is on the plaintiff to prove that he has suffered a loss that is compensable by a certain amount of money. Based on this, the judge will decide whether he should be awarded compensatory damages or not.

Special and General Damages
Compensatory damages are further categorized into two types: (i) special damages and (ii) general damages. Special damages include repair and/or replacement of the damaged property, medical expenses, wages lost as a result of loss of working days, loss of the capacity to work, etc. On the other hand, general damages include pain, suffering, mental anguish, and loss of consortium. The plaintiff can seek both, special damages and general damages.

In the above example, for instance, special damages will include the damages that cover Mr. X’s medical expenses, damage caused to the car, loss of earnings resulting from his inability to go to work for a specific period (or inability to work in the future), etc. In contrast, if Mr. X claims compensation for physical pain and mental anguish that he has had to suffer as a result of this accident, these will be considered general damages.

In the case of a breach of contract, special damages cover a broad range of losses, including loss of profits and damage to business reputation, while general damages cover contractual losses, such as the difference between market prices and contract prices. That might seem a little confusing, but going through the following examples of compensatory damages for breach of contract will help you get rid of your doubts.

If Mr. X buys a house from Mr. Y, only to realize that the house has plumbing problems which Mr. Y had not mentioned during the deal, then Mr. X can claim compensatory damages. In this case, if the said problems bring down the market price of the house, then Mr. Y will be liable to pay Mr. X the difference between the contract price and market price as damages.

A painter hires a moving company to deliver his paintings at the art gallery, where he intends to exhibit them. The people at the moving company fail to make the delivery in time, as a result of which the painter misses the opportunity of selling some of his paintings. In this case, the defendant (i.e., the moving company) can be held liable for the loss of profits that the plaintiff (i.e., the painter) would have made, had the paintings reached the gallery in time.

As you must have noticed, it is easier to calculate special damages, as they are calculated in terms of monetary value. In contrast, general damages are intangible losses which are calculated on the basis of special damages. As general damages don’t have a set value, the decision is left to the judge.

A Brief Explanation About Direct Evidence

Burden of Proof
In legal proceedings, the burden of proof is on the prosecution, which implies that the onus is on the prosecution to prove that the defendant is guilty.
Evidence is what decides a case in both, civil and criminal trials. It helps the parties involved make their case as to what happened and who should be held responsible for the happening. In the courtroom, evidence is anything that supports the truth, i.e., the guilt or innocence, as long as it is admissible in a legal proceeding. It can be the testimony of a witness, documentary evidence like a contract or will, or physical evidence in the form of some material object.

Evidence is broadly classified into two types: direct evidence and circumstantial evidence. While the definition of direct evidence would be that which directly links a person to a crime, circumstantial evidence only implies that the said person has committed the crime, and calls for reasoning.

What is Direct Evidence?

In the field of law, direct evidence―as the name suggests―is any evidence that provides direct proof of the truth of an assertion. Simply put, it validates the assertion of guilt or innocence. The simplest and by far the most common example of direct evidence will be the testimony of an eyewitness.

Having said that, there are a few points that need to be taken into consideration. Firstly, it should directly prove or disprove a fact without making any assumption or inference. If it does resort to assumption or inference, then it will be circumstantial evidence. In other words, it should be based on facts, not coincidences. Secondly, it should be based on personal knowledge or observation, not hearsay.

Depending on who the witness is, the weight of direct evidence will vary. If the witness is a well-known and respected member of society, then his testimony will have a stronger influence on the jury than that of a witness with a dubious record. In either case, direct evidence is of great help for the jury, as it lessens the degree to which they have to infer whether it was the defendant who committed the crime.

Examples of Direct Evidence

As we said earlier, the most common example of direct evidence is eyewitness testimony. Let’s say, for example, you are walking down the street, and as you pass the alley, you see a man stabbing another man with a knife. In this case, your testimony will be direct evidence. Similarly, in an accident-related personal injury case, the testimony of a bystander who witnessed the accident take place will be considered as direct evidence.
As for physical evidence which qualifies as direct evidence, an apt example will be a copy of the contract in a breach of contract case. Then, there are cases where surveillance tapes and other such documentary evidence can also act as direct evidence; a case where an individual is accused of shoplifting will be an apt example of the same.

Direct Evidence Vs. Circumstantial Evidence

The basic difference between direct and circumstantial evidence is that, the latter relies on inference or assumption. In fact, circumstantial evidence almost always has more than one explanation. If, for instance, one person’s fingerprints are found at the scene of a crime, it may mean, (i) he has committed the crime, (ii) he was there when the crime was committed, or (iii) he has nothing to do with the crime; his fingerprints were found there because he had visited the place earlier.

Elaborating on the example we discussed earlier, let’s say you are walking down the street, when all of sudden you hear a scream and see that a person comes running out of an alley. You go inside to see what has happened, and find a body lying there. In this case, your testimony―that you saw the accused running out of the alley, will be considered circumstantial evidence.

While circumstantial evidence usually complements direct evidence to solidify the case, it is of immense importance when it comes to cases where direct evidence is lacking. Then again, at times, circumstantial evidence is enough to prove that someone is guilty beyond a reasonable doubt.

Summarizing the concept, direct evidence directly supports the truth of an assertion, while circumstantial evidence makes an inference to support the truth of an assertion. Thus, when it comes to conviction, both are valuable in varying degrees, and a combination of both can solidify the case.