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  • djbrown@davidbrownlaw.com
    Law Office of David J. Brown

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    Legal Concerns During the Coronavirus Pandemic

    As the Coronavirus shutdowns continue and hundreds, if not thousands, of local folks find themselves staying at home without income, little attention has been paid to legal concerns that should be addressed.
    I am basically a family law lawyer, so there are many areas of concern I am not prepared to address. For example, I know nothing about bankruptcy, and I really am not in a position to advise about contacting credit card companies and mortgage holders about forbearance on paying those debts. But these are topics I do know about:

    Child support  – Child support in Kansas is basically formulated on the basis of three factors: the ages of the children, the income of the parents and the time the children spend with each parent. Potentially, each one of these factors could change during this crisis. The critical issue is that motions to modify child support are not effective retroactively.

    Parents paying or receiving child support whose income change due to loss of job, or any other factor, should immediately file a motion to modify the support.  Even if parents believe they will return to work soon, they should file a motion to modify. Given the current situation, nothing is certain and in many cases prospects of future employment are probably speculative at best.
    Also, if parents have opted to modify a court-ordered parenting plan because of changes in work schedules, or any other reason, they need to know that the court orders remain enforceable. Conflict and future legal fees can be avoided during periods of agreement if parents file agreed motions to conform the court’s parenting orders to what they have worked out between themselves.
    Spousal maintenance (alimony) – like child support, motions to modify spousal maintenance are not effective retroactively. When the income of a party paying  or receiving maintenance changes, parties cannot simply agree to reduce (or increase) support levels without legal complications. Old orders are enforceable until changed by the Court. So, for example, if Party A asks for a reduction in support to be paid to Party B by say $200 a month, and Party B agrees, a year later when Party B is angry with Party A, the old orders are effective and Party A could be ordered to pay Party B the $1,200 in unpaid support plus Party B’s attorney fees.
    Estate Planning – No one wants to think the worst will happen. But, we are in the midst of a pandemic with millions expected to be infected and thousands expected to die. I encourage everyone to take steps now to control as best they can what would happen in the event a worst-case scenario occurs.
    Powers of Attorney – If someone become sick and incapacitated, there are two immediate concerns: who makes healthcare decisions if the person cannot make them; and, who manages the finances and other affairs if the person is unable to do so? A power of attorney for healthcare authorizes another person (or persons) to make healthcare decisions for folks who are unable to communicate those decisions themselves.
    Similarly, a power of attorney for financial or other matters can be used to designate agents to manage ones personal and financial affairs. Further, for parents, a power of attorney can also be used to authorize other folks to care for children if the parents are unable to do so.
    The critical point about powers of attorney is that they all must be executed prior to a person’s incapacity. Thus, these are things folks should be doing now, just in case something horrible should happen in the future.
    And, for the worst-case kind of scenario, folks should also consider drafting living wills and wills. A living will is the document where a person gives instructions to healthcare providers about the measures the person wants taken, or not taken, in the event a person is in a terminal condition. A will (Last Will and Testament) is the document where folks give instructions about what should happen to their property upon their death.
    In the true worst- case scenario – death – folks need to know there are deadlines for filing wills with probate (6 months), and procedures for dealing with creditors. The process is complicated. The important point to remember is that action must be taken to protect assets and avoid unnecessary costs. Delay in addressing these matters and getting sound legal advice is not wise.
    Cabin Fever – The unfortunate fact is that during the enforced quarantines and orders to stay at home issued by multiple levels of government, things are going to get tense in many households. There will be many reasons for that, and for this discussion the reasons are not critical. A basic understanding of some of the steps folks can take in those instances is important.
    Petitions for Protection from Abuse – When situations get extreme and abusive,  the courts are still open for folks to file emergency motions for protection from abuse. Those orders can include orders that one party move from a home, that parties not have contact with each other, and can also make provisions for care of children if they are at risk. It is helpful to remember that folks do not need to be married to get a protection from abuse against another person. These orders can be obtained against a current or former intimate partner or a household member.
    Divorce/Separate Maintenance – The courts are also open for the filing of divorce or separate maintenance petitions. Many of the emergency measures available when filing for orders of protection from abuse are also available in a divorce action. The primary difference of course is that folks must be married to get such orders.
    Obviously, there are other steps folks can and should take in emergency situations. For example, if things are unreasonably tense, temporary separations can lead to reduced anxiety and restored relationships. Or, if there are threats of violence, calls to police are appropriate.

    Trans birth certificate news

    This isn’t exactly new, but in March, a federal district court in Idaho ruled that Idaho’s blanket refusal to amend birth certificates for transgender persons so that the birth marker on the birth certificate matches the persons gender identity is unconstitutional. The state has been ordered to begin accepting applications made by transgender people to change the sex listed on their birth certificates. Any reissued birth certificate must not include record of amendment to the listed sex; and where a concurrent application for a name change is submitted by a transgender individual, any reissued birth certificate must not include record of the name change. In Kansas, applications for birth certificate marker changes are summarily dismissed. The Law Office of David J. Brown, LC, is constantly willing to discuss a legal fight to have birth certificate markers changed in Kansas with any transgender person affected by the current Kansas policies. There is ample ground to argue the Kansas policy is as unconstitutional as that in Idaho.

    Posted June 19, 2018.

    LEGISLATIVE ALERT!

    LEGISLATIVE ALERT: Two bills have been introduced in the Kansas legislature (HB 2687 and SB 401) that will have negative consequences for members of the LGBTQ community who wish to adopt children.
    The bills, both entitled “Creating the Adoption Protection Act” would allow child placement agencies to deny placement of a child for adoption or foster care “when the proposed placement of such child would violate such agency’s sincerely held religious beliefs.”
    The bills also would require the state to work with such placement agencies even though the agencies are free to discriminate against LGBTQ persons based on “sincerely held religious beliefs.”
    Primary sponsors of the legislation are Rep. Susan Humphries (R-Wichita) and Rep. Jesse Burris (R-Mulvane). No hearing has been set yet.
    The issue is that many of the adoption agencies in Kansas are religious based organizations and have already taken a stand against same-sex marriage, relationships and parenting rights. Indeed, if the agencies themselves have not taken such positions, the religious organizations they are affiliated with have taken those positions.
    Religious litmus tests have no place in the evaluation of potential parents for the hundreds of children who need adoptive homes in Kansas.
    The expanded use of religious-freedom exemptions comes even though protections for lesbian and gay individuals are non-existent in Kansas. There is no state law protecting LGBTQ persons from discrimination on the basis of their sexual orientation or gender identity.
    An adoption law would be in a slightly different category than the broad state-based religious exemption laws, since it focuses solely on agencies providing adoption services, and because those agencies work for the state but are not the state itself. The legal question becomes: in a state where it’s legal for individuals to discriminate against people because of their sexuality and gender identity, can private agencies that do the work of a state also discriminate on those grounds when the state itself is constitutionally prohibited from doing so?
    These proposed and passed laws on religious freedom are—pure and simple—government permission to discriminate. This is not only morally wrong in its own right, but will also result in real harm to children and youth.
    Children in foster care are some of the most vulnerable residents of our society. They are in foster care because they have been abused or neglected or because their first families are unable to care for them safely.
    The state has decided that it can do a better job of taking care of them; as a result, it has a legal and ethical obligation to do the best it can for these children. In child welfare, the focus is on making decisions based on the best interests of the child. Discriminating against LGBTQ youth and prospective LGBTQ and other parents is not in children’s best interest.
    Allowing agencies to discriminate based on their leaders’ religious beliefs will cause genuine pain to real children. Right now there are more than 7,000 children and teens in foster care in Kansas. Many are waiting for an adoptive family to love and care for them now and for a lifetime. All of them deserve the chance to have what most of us have—and what state law requires whenever possible—a family to care for them.
    Putting artificial, discriminatory and just plain harmful roadblocks in the way of a safe and loving home for needy children is morally wrong. This legislation must not pass.

    February 9, 2018

    This commentary aired on KPR on November 1, 2017.  

    The city of Lawrence is holding a Veterans Day Parade on November 11. It will be the first to specifically honor veterans since 1968, the height of the divisive Vietnam War.

    For the most part, Vietnam veterans returning from southeast Asia were not welcomed home with parades or ceremonies. Instead, they were often greeted with disdain and public antipathy.

    It was wrong to mistreat the soldiers — folks who risked everything to simply do what their country called them to do. Perhaps for many, this parade can help heal old wounds.

    But there is another group of Americans whose service to their country will never be honored by parades or celebrations: conscientious objectors.

    Those who oppose violence and war have long played a significant role in America.

    In fact, a traveling exhibit organized by the Kauffman Museum in North Newton, is helping to tell their story. “Voices of Conscience: Peace Witness in the Great War” was recently in Kansas City.

    As a conscientious objector myself, I think it’s important to recognize the contributions and sacrifices that America’s pacifists have made to this country.

    Kansas has played a significant role in the history of conscientious objection in America. Beginning in 1865, the Kansas militia law allowed conscientious objectors to free themselves from any obligation to bear arms by paying $30 to benefit public education.

    But things began to change in World War I.

    After being drafted, nearly 4,000 conscientious objectors -– most from churches with long histories of pacifism — were sent to military camps like Camp Funston at Fort Riley. There, they had to convince officials of their sincerely-held beliefs. Some were imprisoned at Fort Leavenworth where they faced abuse and torture… even death. Records show 12 conscientious objectors died at Fort Leavenworth from 1916 through 1919.

    During World War II, more than 72,000 men applied for conscientious objector status. In the end, more than 6,000 of them went to prison for refusing to cooperate with Selective Service. Not all were sent to prison. About 12,000 conscientious objectors worked in the Civilian Public Service, a program designed to accommodate their status by having them do “work of national importance.” Some of this work involved farming, fighting wildfires, building bridges and caring for the sick.

    Hutchinson, Kansas, native and acclaimed poet William Stafford was himself a conscientious objector and served in the Civilian Public Service. In his book, “Down in My Heart, Peace Witness in War Times,” Stafford reported that those supervisors in those camps disparaged pacifists’ efforts and even expressed a desire to kill them all.

    During the Vietnam War, 170,000 men received deferments as conscientious objectors; some 300,000 applicants were denied deferment and nearly 600,000 illegally evaded the draft.
    America has benefitted from the efforts of those who refused take up arms. In all its wars, conscientious objectors have served on battlefields as medics. They have worked in non-combatant service on the home front. And, it was, after all, conscientious objectors in the 1960s and 70s – and others involved in the anti-war movement – that turned much of the nation against the Vietnam War… and helped bring it to an end.

    On Veteran’s Day, as we honor those who served in uniform, I hope we’ll also recall and honor the sacrifices of those Americans who resisted the drums of war. There are honorable Americans with strongly-held beliefs on both sides of any conflict.  Both deserve our respect.

    Labor Day

    The most memorable Labor Day weekends I’ve spent so far were in Albany, New York, when my wife and I would walk over to the lawn west of the State Capitol to see Pete and Toshi Seeger. Pete sometimes came up the Hudson River on the sloop Clearwater. Other times they drove up from Beacon in Dutchess County in their little station wagon.
    Pete was always mobbed with people the instant they arrived, but Toshi worked in the background taking care of the details Pete may never have noticed. She set up the tables and had copies of the most recent Sing Out! spread around. There was always information about the Clearwater and the latest fund-raising efforts to clean up the Hudson. Sometimes there were homemade cookies.
    They were always cheery, family oriented, fall picnic days. Politics didn’t dominate, but discussions were in the air along with the music from local folks whose careers had been supported in so many ways by Pete and Toshi. Ruth Pelham was there from Music Mobile, and Cathy Winter, and lots of others I just don’t remember.
    My wife Liane Davis’s history with Pete went back to her childhood. Liane was the daughter of Leon Davis, founder of 1199, the finest health care worker’s union there ever was. When Pete was blacklisted in the 1950 and 1960s, the precursor of 1199’s Bread and Roses project hired him, the Weavers, Ruby Dee and Ossie Davis, and so many more to entertain union members and their children. Pete visited Liane’s home frequently. When Leon Davis died, Pete sang at his funeral in Lincoln Center.
    So, we were always treated like family at those small gatherings. I mean that, just like family. So we helped Toshi set up the tables, or went to get supplies someone had forgotten. And no, we didn’t get to have long conversations with Pete, because he was on stage. Well, there was no stage, just an expanse of freshly mowed lawn sometimes spotted by early fallen leaves. But there were always crowds of folks between him and us. He always managed to say how great it was to see us but then he was off to meet and greet. Not that he was so good at that. He personified the concept of a shy gregarious human being. He clearly felt more comfortable playing with children than talking with their parents.
    My memory of those days is clouded by time. These recollections are nearing 40 years old. So, they might be a bit embellished. But, the events, and those afternoons with Pete, instilled in me a very special feeling and appreciation about labor day.
    The message of the day was always that we are better when we work as family and take care of each other. There was a shared feeling of an obligation to watch each other’s back; to look to each other’s strengths and build on them. Yes, together we are stronger working to improve out lots in life than we are working alone. There was an understanding, a basic tenant in our lives, that selfishness and me first attitudes were abominable and unimaginable.
    Today, what I see is unmitigated greed, selfishness and lack of concern for our fellow human beings. I fear perhaps, the tide of time has passed me by. I fear he way of living that I hold so dear, the way of caring, the way of being part of a universal struggle, the way of working together for a public good, has no currency in this modern world.

    When I can put my anger and sadness aside, I get nostalgic and wistful. It is Labor Day, the time to celebrate what I hold dear. So, I join my current wife, Mary Klayder, in a traditional Labor Day vodka toast to my deceased father in law in his old shot glasses. And, I sing, with pride, “Oh you can’t scare me, I’m sticking with the union, I’m sticking with the union, ‘til the day I die.”

    September 3, 2017

    Make certain you are counted

    The Census Bureau is preparing  questionnaires for the next census and planning to leave most questions about gender identity and sexual orientation off the forms. This is wrong. It is time for everyone to stand up and insist that populations in our country be accurately counted.

    The Census, which every ten years counts every person in the United States, was mandated by the Founding Fathers and has been called a keystone of American democracy. The government uses it to allocate public resources; businesses use it to choose where to invest; and the count affects congressional redistricting.

    The U.S. lacks simple, reliable information about the LGBTQ community. How big is it? What is the average income level, life expectancy, or unemployment rate? Without data, policymakers can ignore the entire community and pretend it doesn’t exist.

    At national level census information is used to plan the provision of health care, education, employment, transport, etc. It is used to help determine where to build new schools, roads, health care facilities, child-care and senior centers.

    The Census is also an important economic tool.  One of the greatest strengths of the census is the provision of detailed population figures at local level. It counts the number of people in each region, county, town and local area and this helps local authorities to make better decisions about the whole range of their activities including the provision of utilities, transport, healthcare requirements and education facilities.

    Census data is extensively used by interest and representative groups who have power to influence the authorities in campaigning for the interests of those whom they represent. The use of Census data in the reports and submissions of these groups is a convincing and powerful tool in influencing political and social leaders.

    In short, this is about money and representation. If data isn’t collected showing that the the LGBTQ community exists, when it comes time to allocate governmental resources, there will be no basis for awarded those resources to the LGBTQ community.

    Understanding the size of the LGBTQ population is a critical first step to informing a host of public policy and research topics. States and governments are often testing grounds for the implementation of new LGBTQ related public policies or can be directly affected by national-level policies. Adding sexual orientation and gender identity questions to national data sources that can provide local-level estimates and to state and  municipal surveys is critical to assessing the potential efficacy and impact of such policies.

    The Census Bureau wants to appear neutral and above the fray, but its work is inherently political. Members of the LGBTQ community and all supporters should demand a count in 2020 that is accurate and fair to all.

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