August 11, 2019 · 11:10 pm

What is a Tennessee Permanent Parenting Plan?

One of the most important pieces of a divorce involving minor children is the creation of a Permanent Parenting Plan.  Not only is it required to finalize a divorce, but the plan must be in the best interests of the minor child(ren).

Divorcing parties can collaborate to develop a Permanent Parenting Plan (PPP).  Or, if the parties do not agree, the PPP may be ordered by the Judge presiding over the divorce.  Generally, as with other issues in a divorce, it is best that the parties develop their own parenting plan by agreement – rather leaving such a deeply personal family matter to a Judge who only gets a snapshot of your life and your case.  For purposes of this post, we will discuss an agreed PPP.

So, what is a PPP? A PPP is ultimately the rule book that the parties will follow regarding raising their children post-divorce. It covers parenting time, child(ren) exchange time and place, who pays health insurance for the child(ren), who pays for day care, who makes religious and or health decisions for the child(ren), child support, and more until the child(ren) reach the age of majority.  Some parents address college expenses, the purchase of a vehicle for the child(ren), payment for extra curricular activities, travel and more as part of their PPP.  Without a clear and concise PPP establishing the rights, duties and obligations of the parents, disputes, confusion, problems and even a post-divorce law suit are sure to follow.

Generally, a PPP addresses all aspects dealing with the minor child(ren) of a marriage.  Thus, a PPP is a very important part of the divorce process and should be taken very seriously during the negotiations process.  An experienced family law attorney can assist you by protecting your rights and crafting a PPP that will be in the best interest of your minor child(ren) and will help you and your spouse co-parent effectively and without conflict.

Child support is one of the key elements in a PPP. Clients want to know who will pay child support and how much the monthly obligation will be.   In a Tennessee, the number is not just “made up” or “ball parked”.  In fact, child support is determined by a formula through the Tennessee Child Support Guidelines. To determine child support the following items are needed:  1) proof of income from each parent; 2) a proposed parenting schedule which determines the number of days per year each parent will have with the child(ren); 3) Proof of any potential support obligation off set such as an existing support obligation for other children outside of this marriage; 4) Proof of any special needs and or medical care for the child(ren) of the marriage; 5) Proof of work-related child care costs; 6) Proof of health insurance costs; and 7) other related documents or expenses. This information is incorporated into the Child Support Calculator and the presumptive child support obligation is determined.

The creation of a PPP that works for your family is not only essential to achieve a divorce, it is also essential for successful co-parenting.   And, just because the parents want to do X or Y doesn’t mean the Court will approve it.  Your attorney can walk through your goals and options with you to help you know if your goals will comply with Tennessee law and even what your Judge will agree to as part of the divorce.  For example, some Courts will agree to a true 50/50 parenting plan and some will not agree to it unless the parents have already been following a 50/50 plan for a significant amount of time without issue. 

The Golden Rule is that the plan must be in the best interests of the child and not just what Mom or Dad wants or thinks should happen.  In considering what to put into your parenting plan, put your child(ren) and their emotional an physical well being first and put current divorce conflicts with your spouse to the side.  Remember, the PPP is about your child(ren) and what is best for them and not trying to “score” one against your spouse or trying to use the child(ren) to hurt or punish your spouse.

The PPP will also be incorporated into your Final Decree of Divorce.  This means the Plan is not a “suggestion”. It means it is court Order and will be the controlling document regarding parenting time and obligations until the child(ren) graduate high school *and* have reached at least age 18 years of age.

Have questions about creating or modifying your PPP?  Please call us today at 615-200-7239.

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March 10, 2017 · 8:34 am

Orders of Protection

An Order of Protection is a civil action but it can have criminal repercussions if violated.  Orders of Protection can be issued between those persons who have lived together, had sex, are related, had dated or other such close relationship.  Orders of Protection can be issued when there is a real or immediate threat of harm to the complainant’s person or property.

Typical examples justifying the issuance of an Order of Protection are threats to burn the complainant’s car, threats of physical violence – especially when there is a history of domestic violence, actual physical violence, and threats against the complainant’s children and or pets.

Orders of Protection may be issued in one of two ways.  First, the complainant (the Petitioner), completes a form requesting an Order of Protection and submits it under oath to the magistrate.  If the magistrate finds probable cause, an ex parte Temporary Order of Protection is issued.  This temporary order lasts usually for no more than fifteen days.  The order becomes effective when the other party (the Respondent) is notified of the order by the Sheriff’s Office.  During this time, the Respondent must not contact the Petitioner either directly or indirectly through others and must stay away from the Petitioner.  If the parties were sharing a home, the Respondent may contact the police department to arrange for a time to collect her or his personal belongings from the home.  A formal hearing is scheduled and both parties may attend to present their side of what occurred between the parties.  A judge then decides to extend the Order of Protection or to dismiss it.

If at any time while the Order of Protection is in effect and is violated by the Respondent, the Respondent is subject to immediate arrest.

An Order of Protection may also be issued when both parties appear before a judge or magistrate. For non-married parties, this starts at the General Sessions Court level.  This is typically to establish whether by preponderance of the evidence the Petitioner can prove that the Respondent has done something that would merit the issuance of the Order of Protection.

If you believe you need an Order of Protection, please do not hesitate to act.  Your safety is paramount.

The Rushton Law Firm, PLLC offers both Orders of Protection prosecution and defense services.  Please contact us today to learn more about our services and how we can assist you in prosecuting an Order of Protection or defending yourself from a wrongfully issued Order of Protection.

To view an Order of Protection application, please click this link.

https://www.tncourts.gov/programs/self-help-center/forms/order-protection-forms

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March 5, 2017 · 3:38 am

In Defense of Step-moms (and dads)

Remember Cinderella’s step-mom? “Light the fire! Fix the breakfast! Wash the dishes! Do the mopping! And the cleaning and the shopping!”* She was not the kind of step-parent a child would ever want. She was the original “step-monster”.

I’m a step-parent, but to grown adult children with children of their own. But whether the children are very small or are adults on their own, there is no tried-and-true manual for step-parents to “fit” into the new family dynamic. After all, each family is unique with their own way of doing things, patterns of communication, and traditions. And, maybe the step-parent is not entirely welcome, especially if the “original parent” feels replaced, angry, jealous, and/or threatened and communicates this directly or indirectly to the child(ren).

Nothing could be worse for your children. Several years ago, a woman I know, I’ll call her “Linda”, met her former spouse’s new fiancé.  Sadly, Linda took most every opportunity to criticize and be nasty to the fiancé.  She would not listen to reason nor dignity.  Her child marinated daily in Linda’s hatred for the fiancé.

The fiancé appeared to love the child. She attended the child’s events at school, church and gymnastics.  She sent her home with treats, bought her clothes, and otherwise demonstrated her attachment to the child.  The child wanted to love the step-mom but Linda sabotaged it in every possible way.  Linda mocked the clothes as being tasteless, ill-fitting, and or “cheap”.  She threw away the treats in front of the child.  She refused to speak to the fiancé at school and other events.  The child suffered from all the stress and became very anxious whenever the fiancé was mentioned or was around Linda.  The child was not free to form an emotional bond with the fiancé and that relationship suffered.

The child’s father was no “winner”.  Having been previously granted only supervised visitation, his ability to properly care for the child was in question. Linda utterly failed to grasp that the fiancé could ensure the child’s  well-being during the father’s parenting time. We encouraged Linda to make an ally of the fiancé and at least try to co-parent with her but Linda refused. The fiancé became the step-mom.  Eventually, the new step-mom gave up trying to be friendly to Linda and joined her new husband in the ongoing war between the parents.  The child suffered and exhibited signs of emotional distress and anxiety as a result of the adult’s antics.

Don’t be “Linda”. Love your child more than you hate their step-parent.

So, what do you do when the step-mom / step-dad appears? To be direct, you do not have a right to prevent your child’s other parent from dating or remarrying. They have all the same rights as you do to live a full life – and that includes dating and or remarrying.

So, it is time for a little introspection.

First, do you welcome a step-parent in your child’s life? If not, why not? Be specific. Write it down. Odds are if you are unable to lay out the “why” on paper, it may be more of an emotional reason than a rational one. Note, it is not enough that you “just don’t want someone else in the child’s life”. If that is the only thing you can come up with, take a breath and put on your adult pants. Life moves forward whether we want it to or not. Adulting is not always easy, but it is what we are called to do once we have children.  Put your children first before your own jealousy or insecurity.

Second, take inventory of your emotions. Are you angry? Jealous? Threatened? And, if so, why? Are these emotions something you want your child to marinate in? Even if you don’t openly verbalize your unhappiness about the step-parent, your child will still pick up on the non-verbal cues.  Keep adult emotions and feelings away from the kids. They can’t fix it and the are very sensitive to the emotional well-being of the hand that rocks the cradle. In short, keep the kids out of it.

Third, is it the thought of your calling someone else “Mommy” or “Daddy”?  Please know, if you seek to maintain your place in that child’s life and take care of your obligations as a parent financially and emotionally, there is no reason why you won’t remain “Mommy/Daddy”. Yes, seeing your child get attached to a new dating partner can be hard (Divorced and Dating with Kids is the subject of another article). But, by creating and maintaining a respectful relationship with the new step-parent, you will know someone is ensuring your child’s well-being when you are not there, and that peace of mind is priceless.

Fourth, do you believe the step-parent is in any way a threat to the safety and well-being of your child? Does he or she have a history of drug use? Violence? High risk activities? Child molestation? Alcoholism? Criminal activity?  If you have any of these concerns, then stop reading and call your attorney right now.  The “best interests” of the child is the gold standard in parenting time allocation. If that person represents a danger to the child, you are not over reacting.  You need to speak up to protect your child from someone who represents a potential danger to them.

Our hope is that your co-parent will be respectful and reasonable in how they handle introducing the new spouse into the family. Remember, it is not always the easiest task for the parents, step-parent or the child. Show each other some grace and give it some time. Take it slow. Open a dialogue with your co-parent about any concerns you have and collaborate – don’t try to dictate. Who they date or marry is not your decision. Yes, your child is involved but again, your ex has every right to move on in his or her life – just as you do. Collaboration with your co-parent will ease the transition and promote the well-being of your child.

Life evolves. You will want the same considerations when you fall in love again and or remarry. The shoe, or the glass slipper, will be on the other foot if it hasn’t been already, and you could be the step-monster, I mean step-mom.

Good luck!

*from Cinderella’s, “The Work Song” Continue reading →

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November 30, 2016 · 7:23 am

Legal Questions and Answers

 

fullsizerenderHarold E. Rushton, Esq. is a Nashville, Tennessee based Divorce, Separation and Criminal Defense Attorney serving Davidson, Williamson, Rutherford, Dickson and Wilson Counties.  Call The Rushton Law Firm, PLLC  Phone:  (615)576-0071 or (615)815-9967

 

Call today for a FREE consultation (615)576-0071 or (615)576-0071

Email: Harold@TheRushtonLawFirm.com or Leigh@TheRushtonLawFirm.com

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November 17, 2016 · 3:24 am

Divorce – Questions and Answers

divorceWe frequently receive questions from people that are either in the process of divorce or are soon to begin a divorce.  We have decided to share some of those questions and answers here for those of you that may benefit from this information.

Here’s a question that we recently received and answered:

Can a wife claim abandonment in TN if husband has not lived at home for 1 month?

“Wife of 6 yrs has become addicted to drugs and children were removed from the home as a result. Husband moved out of home as well after being told by family court he should not allow the children to have contact with their mother until she fulfills treatment. The home has been under Chapt. 13 bankruptcy for over 2 yrs. Wife has been a stay at home mother for 1.5 yrs. She is now threatening to file for spouse abandonment to have husband’s wages garnished in order to keep the home as residence and provide herself with income. Husband has bank statements and records showing he has provided income to her while he has been absent from the home. The situation has been ongoing for just over 1 month.”

ANSWER:
By Harold E. Rushton,  Attorney at Law

You have posed some interesting questions regarding divorce and separation. First, the answer to your main question is no. One month is an insufficient period of time to establish abandonment grounds for divorce in Tennessee.  The law in Tennessee states the parties must reside separate and apart for at least (2) two years to establish abandonment grounds for divorce in Tennessee.

The facts as you have presented them do provide potential grounds for divorce of which the husband could raise.  Those grounds are drug addiction by the wife.  Under Tennessee law, habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage are sufficient grounds for divorce.

If the husband is the primary parent, once he files for divorce, he may file a pendente lite action to seek support from the wife if she is failing to contribute support to the minor children and the burden is solely his to support the children. Whether relief is granted will depend upon his and her earning power, assets maintained by each party, etc. Those are all fact specific and must be determined by the court after hearing all of the facts of the case.

You really need to seek the advice of an attorney regarding this matter.  Here at The Rushton Law Firm, PLLC, we focus on divorce and separation so we can guide you through this process and help to protect your rights along the way. I hope that I have been helpful in answering your questions. Please do not hesitate to let us know if you should have any further questions.  We are located here in Davidson County, Tennessee and are happy to assist any time. I wish you all the best in the outcome of your case.

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Harold E. Rushton, Esq. is a Nashville, Tennessee based Divorce, Separation and Criminal Defense Attorney serving Davidson, Williamson, Rutherford, Dickson and Wilson Counties.

The Rushton Law Firm, PLLC  Phone:  (615)576-0071 or (615)815-9967

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November 15, 2016 · 11:33 pm

Divorce – Need help navigating the dark path ahead?

lwsm_dark-path_1994-test_159If you are contemplating a divorce in Tennessee or already in the process, the road may be a rough one appearing to be filled with perilous pitfalls. Every divorce situation is different and many are quickly and amicably resolved. These are typically referred to as “uncontested divorces.”  Sometimes things work out well and everyone leaves the marriage satisfied that they have worked things out amicably.  However, some divorces are riddled with animosity, feuding and strife from day one. This is something that is very difficult to predict because of the nature of divorce.  Many times an “uncontested” divorce quickly becomes contested and the parties find themselves in a living nightmare!

The attorneys at The Rushton Law Firm, PLLC handle both types of divorces – contested and uncontested.  We focus a large part of our practice on handling divorces in Nashville, Tennessee and surrounding areas. That means we deal with divorce situations every day and are knowledgeable in this area of the law. We understand that divorce can be a very difficult time in your life.  Divorce can be a bit of an emotional roller coaster and those emotions can hamper moving forward or even damage your case, depending upon how you act upon those emotions. That is why it is of utmost importance to retain an attorney to represent you in your divorce.

Our law firm focuses on divorce matters. We zealously advocate for our clients rights in every aspect of your case.  We also walk hand in hand with you through the process so you do not have to go it alone.  It can be a scary time in your life and you need someone that cares enough to help. When you retain The Rushton Law Firm, PLLC you hire a team of professional attorneys that are here to help you navigate the dark path that is before you. You also get an team of advocates that are on your side, representing your best interests and working to make sure you are protected during your divorce. Each and every phase of the divorce process is crucial to the final outcome of your case. Do you want to risk your future?  Of course not!  That is why you should hire a team that cares about your case, is knowledgeable of divorce law and fights for your rights from day one!   That’s why you should call The Rushton Law Firm, PLLC.

We offer FREE consultations to discuss your case and help guide you through the process. Call us now at (615)576-0071 or (615)815-9967. We are available during regular business hours and even after regular hours to help. We understand that life doesn’t just happen between the hours of 8:00 AM and 5:00 PM and we will take time to answer your after hours calls and give you sound advice.

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Harold E. Rushton, Esq. is a Nashville, Tennessee based Divorce, Separation and Criminal Defense Attorney serving Davidson, Williamson, Rutherford, Dickson and Wilson Counties.  Call The Rushton Law Firm, PLLC  Phone:  (615)576-0071 or (615)815-9967

Call today for a FREE consultation (615)576-0071 or (615)576-0071

Email: Harold@TheRushtonLawFirm.com or Leigh@TheRushtonLawFirm.com

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October 25, 2016 · 11:23 pm

Accused of DUI and Need Representation?

dui2Being arrested and charged with DUI can be a very serious situation for you and your family.   That is why you should seriously consider hiring an attorney to represent you if you are accused of DUI.   Your interests are at stake when you go up against the State in a DUI or criminal case.  Your freedom may also be in jeopardy.   This is an important time to seek help.

Tennessee DUI laws have strict penalties and carry minimum mandatory sentences.  This could mean time in jail if you are convicted, loss of work or even loss of employment.  It can also translate into negative implications later when you attempt to apply for a new job or even adversely affect child custody agreements in divorce cases.

DUI (driving under the influence) can result from either excessive consumption of alcoholic beverages, illicit drugs, prescription drugs or even an over the counter substance that alters one’s ability to safely operate a motor vehicle.   This covers a pretty broad range of ways to find yourself under the influence and running afoul of the law in Tennessee.   Depending on which method of intoxication you are accused of, will depend on the method of evidence collection the state will use to extract the proof from your body.

This brings us to the next point.  If you are stopped and investigated for driving under the influence, law enforcement will typically administer three standardized field sobriety tests.  Those include:  (1) The horizontal gaze and nystagmus test;   (2)  The one-leg stand test; and (3) The walk and turn test.  These tests are designed to determine if a driver is impaired to a degree that they can no longer safely operate a motor vehicle.  The investigating officer will look for certain evidence of intoxication.  The evidence may vary if the violator is suspected of alcohol intoxication vs. drug intoxication.   An officer should be trained and certified to administer these tests.  However, sometimes they are not properly trained or are not current in the their training.  This is an issue that we will explore if I defend you in your DUI case.  I will apply years of experience as a State Trooper and Traffic Homicide Investigator to your case.   I was certified to perform each of these tests and did so daily for many years.  I know when the investigation was properly conducted and when it was not.

If the officer believes after these field sobriety tests are conducted that you are under the influence, the next phase is normally an arrest. When arrested, you can expect to be taken to the nearest jail where you will be directed to take an approved chemical test for the purpose of extracting evidence from your body that will later be used against you.  This is a very important phase of the DUI arrest process.  It is important for the State and it is important for you.  There are specific procedures that must be followed by law enforcement during this phase of the evidence collection process.  If they deviate, the evidence may be tainted and cause elevated alcohol indications adversely affecting the test results.  Likewise, if you are asked to submit to a blood test to determine the level of controlled substances present in your body, certain procedures must be followed by the evidence collection technician.   Otherwise, the blood may become contaminated, the chain of custody could create reasonable doubt as to the validity of the evidence sample, or a host of other issues could occur.  This is why you need a competent attorney by your side if you have been charged with DUI.

I have extensive experience investigating DUI cases and traffic collisions resulting from impaired drivers.  I spent over a decade working as a State traffic homicide investigator and gained valuable inside knowledge of the “system” and how it works.  I know when the proper procedures were followed by law enforcement.  I also know when their case is weak.  Let me use these skills and knowledge to represent you if you have been accused of DUI.  This is an important time in your life.  Don’t go it alone.  Seek an attorney that you can trust with your future.

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Harold E. Rushton, Esq. is a Nashville, Tennessee based criminal defense attorney serving Davidson, Williamson, Rutherford, Dickson and Wilson Counties.  Call today for a FREE consultation (615)576-0071.  Email:  Harold@TheRushtonLawFirm.com

 

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October 20, 2016 · 7:56 am

DUI conviction can have significant impact on your future!

dui1Many times good people find themselves in a bad situation.   Over the course of my career I have witnessed this happen many times.   Good, hard working people who found themselves running afoul of the law by just one or two drinks too many.

DUI is the abbreviation for driving under the influence.  Although we commonly think of DUI as meaning driving an automobile after having too many alcoholic beverages, but it doesn’t stop there.   It can also mean driving under the influence of a controlled substance, medication, marijuana, or even some legal substance that causes impairment to an extent that one can no longer operate a motor vehicle in a safe manner.  All of these are big trouble if you are accused and charged with DUI.

Most states have significantly cracked down on DUI arrests.  They have legislated severe penalties and take DUI enforcement very seriously.   Tennessee state law even makes it a criminal offense to refuse to take a breath test during a DUI investigation!

What does this mean to you, the average hard working citizen?   It means a DUI conviction could have significant adverse implications on your future.   A DUI conviction could bar you from gaining employment, it could cause your employer to terminate your employment, it could cause you to spend time in jail, pay thousands of dollars in fines, court costs and legal fees and it could even adversely affect child custody agreements in divorce situations.  There are many ramifications to having been convicted of a simple DUI.

Things may become even more serious if you are involved in a traffic accident where someone is injured or killed and you are accused of being under the influence.   This typically triggers a traffic homicide investigation where the state may seek to prosecute you for assault or even vehicular homicide, depending on the facts of the case.   This is not a good place to be and if you are accused of a very serious charge, you need a competent attorney to protect your rights.

After a collision such as I have just described, you may need immediate representation.  The police will typically attempt to interview you, take a statement, request samples of your blood for analysis, request that you submit to a breath test or other types of evidentiary collection.   You should immediately seek an attorney to help you though this process.   You have both the right to remain silent and the right to an attorney during questioning.   You also have other civil rights under the Tennessee Constitution and the U.S. Constitution that your attorney will assist in protecting.   Don’t try to go it alone, seek counsel.

If you’ve been accused of a DUI, traffic homicide, vehicular assault, or other criminal offense, we are here to help.  Harold Rushton, Esq. is a Nashville, TN based Attorney.  He has a vast amount of experience as a state trooper traffic homicide investigator and traffic accident reconstructionist.  He knows what to expect from law enforcement and how to defend your rights against improper or unjust prosecution.  He will skillfully defend your rights, protect your interests and will diligently serve your needs as a criminal defense attorney.  At The Rushton Law Firm, we understand that bad things sometimes happen to good, hard working people.

If you find yourself facing criminal charges and are seeking the assistance of a criminal defense attorney, call The Rushton Law Firm, PLLC today for a FREE consultation.  (615)576-0071 or (615)815-9967

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October 9, 2016 · 10:45 pm

Estate Planning – Don’t be a Prince.

prine-decedentEarlier this year, we posted about the passing of Prince.  He died without having executed a will devising his ‘Diamonds and Pearls’ or making other fundamental estate planning decisions.

If you die intestate (without a will), your spouse and descendants (children) will receive your estate directly.  Should you die without direct descendants, it then goes “up” to your parents, and if they are deceased, then to your siblings. If your siblings are deceased, the court keeps going until it finds your closest relatives who would then receive your estate.  This is where the classic movie begins with the “rich uncle” twice removed who passes and suddenly you inherit $50,000 and a ‘Little Red Corvette’.  Unlikely, but it makes for good storyline.

Prince died without a spouse, his ‘Most Beautiful Girl in the World’, and without children children born during a prior marriage.  Multiple people claimed to be his children in order to receive a portion of the multi-million estate.  This created quite a ‘Controversy’.   Most were eliminated as descendants via DNA testing.

What a mishegas!  Had the Purple One had taken a few steps to make his wishes known, his siblings and/or specific beneficiaries could have saved an untold amount of money in legal fees.  It is also estimated that approximately half of his estate will go towards estate taxes alone.

Don’t take a page from Prince’s song book and leave your estate in this condition.  Plan.  Act now.

The article linked here is an excellent source for some very simple planning you can efficiently accomplish.  This can make an extremely difficult time much easier for the people you love when you are gone.  Planning ahead for these matters is not morbid.  It is smart.

After all….

No one lives forever.
Make an exit plan.
Know where you going.
You will leave your luggage here.
Make your decisions or someone else will make them for you.

To learn more about the status of the purple estate, click here.

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August 19, 2016 · 1:32 am

Criminalizing Guns in the Bedroom.

Your constitutional right to privacy blankets your bedroom.   The right to privacy “penumbras” give you the right to marry, use birth control, have children, and more.  These rights are not written in black ink as part of our Constitution.  Rather, they have been interpreted (judiciakid-gun-drawerlly inferred) from the Constitution and are part of the fundamental rights we enjoy as citizens.  Our culture and current political environment have produced the expansion of these judicially inferred rights in recent years, with likely more to come.  It is ironic that as judicially created personal privacy rights expand, some seek to limit an actual black and white Constitutional right – the Second  Amendment.

Recently, a couple in Colbert County, Alabama found their bedroom in the constitutional spotlight after a tragic accident.  Like many people, William and Chelsie Whitfield kept a gun in their bedroom, the most private and intimate space of a home. The couple had recently experienced crime in their neighborhood, including having their cars broken into and one of their neighbor’s homes burglarized.  In July 2016, family members visited the home, including a 2-year old boy.  The boy and his mother found their way to the Whitfield’s bedroom where the child discovered a firearm in or on Mr. Whitfield’s night stand while his mom was on the phone.  He tragically shot himself.

As heart breaking as this is, it got worse when William and Chelsie Whitfield found themselves to be the subject of a grand jury investigation.  The Whitfields were indicted for involuntary manslaughter. Mr. Whitfield’s attorney, Billy Underwood, stated Mr. Whitfield was not home when the accident happened and did not know anyone would be in his bedroom.  The District Attorney for Colbert County, Bryce Graham Jr., said the indictment is about “recklessness and irresponsibility” and not about the Second Amendment or gun ownership.  Mrs. Whitfield’s indictment appears to be based on her knowledge that there was a loaded gun in the bedroom but did not do anything about it.

Twenty-seven states and the District of Columbia have enacted “child access prevention” laws.  Alabama is not one of them.  Thus, it appears Colbert County is attempting to create case law in the absence of legislative action on the issue.  States with the CAP laws are reluctant to enforce them, especially on parents who may have just lost their child.  The question presented then is, is it reckless and irresponsible to place a loaded firearm in your private bedroom where others are not expected to be present? Should we prepare for any possible nosy neighbor or errant child to rummage through our belongings even in our most private space?

Yes, a loaded gun was in the most private place in a home, the master bedroom.  No, the child was not closely supervised.  Distractions happen.  Children have a remarkable ability of finding their way into gorilla cages, drawers, medicine cabinets, unattended pools or even eating button-sized batteries.

Guns mistaken as toys.  Pools left unsupervised.  Button batteries or medicine mistaken as candy.  Anything from the inherently innocuous to not can be dangerous to an unsupervised child.  However, we are not arresting and charging the grieving relatives with a crime when a child dies from eating an a forgotten car remote battery or from accidentally drowning in a pool.  Is leaving the battery on the coffee table “reckless and irresponsible”?  Are education and awareness better routes than indictment, arrest and prosecution?  Would a civil lawsuit make more sense than a criminal indictment?

Despite District Attorney Graham’s “assurance” this case is not about the Second Amendment, it is increasingly clear that gun ownership, use and or advocacy are indeed in the cross hairs.  Anti-gun advocates desire stricter controls up to the government removal of citizen-owned guns. One presidential candidate has even questioned if the Second Amendment is an actual “right”.  Whether you are pro or anti-gun, Republican or Democrat, the erosion or criminalization of our rights, whether it be one created by interpretation or by original ink, should concern us all.

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