Federal law, 18 U.S.C. Section 922(g) (8) prohibits the following persons from possessing, shipping/transporting, or receiving any firearm or ammunition:
“a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner  or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.”
The penalty for violating this law is up to ten years imprisonment in Federal prison and/or a $250,000 fine.
Federal law prohibits the possession of firearms or ammunition even if an order of protection was consented to on a “no fault” basis—no matter what a state court judge tells you.
There is an urban legend operating in some of the courts of Missouri that if a person consents to a “no fault” order of protection, s/he can keep her firearms and ammunition. That is not so if the order prohibits the use of force or the threatened use of force.
No “full “order of protection may issue without a “hearing.”  That is so regardless of whether the order is consented to or not. The federal statute covers any order issued after a hearing, so it covers any full order, consented to or not. Furthermore, the federal statute does not distinguish “no fault” orders from others. While the federal statute covers orders where there was “a finding that the person is a credible threat”, which would contemplate a “non-consent” situation, the federal statute also covers any other order which “by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.” Clearly, this statute covers all full orders, regardless of whether consented to or not.
Federal law prohibits the possession of firearms or ammunition even if an order of protection was a temporary order–no matter what a state court judge tells you. And this is so regardless of whether the order was issued in an adult abuse case or a divorce case.
There is also a myth that a person may keep his/her firearms and ammunition if the order prohibiting the use of force or the threatened use of force is only “temporary” and not a “full order of protection.” That also may not be so, depending upon whether the temporary order was also ex parte or not.
We often refer to adult protection proceedings as “ex parte” proceedings because a court can enter an “ex parte” order right after a petition is filed and before the respondent has any notice of what is going on. The expression “ex parte” means that the respondent—the person against whom an order is sought–was not present when a judge signed the order. The federal statue applies only to a person against whom an order “was issued after a hearing in which the person participated.” So the federal statute does not apply to a person against whom a Missouri “ex parte” order was issued.
But a Missouri “ex parte” order is only temporary. The person against whom such an order was obtained—the respondent–has a right to a quick hearing on the question of whether the order should be made permanent, the case dismissed, or something in between. What happens then? Several things can happen. There can be a hearing on a full order of protection, and if a full order issues after a hearing and prohibits the use of force or the threatened use of force, then the federal law prohibiting the possession of firearms and ammunition is triggered.
On the other hand, by agreement of the parties (or even on the court’s own motion), the court may leave an order which was originally entered ex parte in place as a continuing temporary order—one that is not yet a “full” order. Sometimes the parties involved also file for divorce, and by agreement of the parties the adult abuse case is dismissed and a temporary restraining order is entered in the divorce case prohibiting “the use, attempted use or threatened use of such force against such partner or partner’s child.” The federal statute does not distinguish between a temporary order and a full order, does not distinguish between whether the order is entered in the context of a divorce action or in the context of an action brought under an adult protection statute, and, as already explained above, does not distinguish between orders that are consented to and orders that are not consented to.
In other words, any temporary order except for an initial ex parte order which prohibits the use of force or the threat of a use of force triggers the federal statute prohibiting the possession of firearms or ammunition.
How can a Respondent keep his/her firearms?
If you get into a situation where someone wants an order against you and you want to keep your firearms and ammunition, talk to your attorney. Short of simply trying to win the case and getting a dismissal (and so risking a loss), one solution to discuss is to consent to an order that simply states that you are not to be anywhere in the presence of the petitioner, not to enter his/her place of work or upon his/her property, and not to communicate with him/her. The federal statute is triggered by an order prohibiting “the use, attempted use or threated use of force.” The federal statute does not refer to orders simply prohibiting you from coming around a petitioner or communicating with a petitioner.
But don’t try to do this on your own. Talk to your lawyer. Note the penalties I laid out at the beginning of this little discussion—what can happen if you get it wrong.
Must an abuse victim agree to an order that lets the abuser keep firearms?
The answer would certainly be “no”. If you are an abuse victim and have asked for an order of protection, you do not have to be bullied into agreeing to language in an order which will make an end-run around the federal statute. Although a state court judge cannot give someone permission to bear arms where a federal statute says otherwise, a state court judge can say the magic words that trigger the federal statute. While the state court judge can’t “give”, the judge can certainly “take away.” If you have filed a petition for an order of protection and you don’t think that the Respondent should have firearms, tell the judge and tell why. If the judge believes on sufficient evidence that you have been abused and that you should be protected from force or the threat of force, then the judge should enter an order of protection which by its terms prohibits “the use, attempted use or threatened use of such force against such partner or partner’s child.” No guns allowed then. That’s what the federal law says and that is what it is for.
 The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person. 18 U.S.C. Section 921 (a) (32).
 A “full” order lasts for 180 days or 365 days. If the order is a final, appealable judgment, then it is a “full” order. Typically, the Court will call it that by name, but regardless of whether it is call “full”, if it is appealable it is “full.”
Do your physical or mental conditions qualify you for Social Security disability benefits? You are out here on the internet just trying to get a simple, straightforward “yes” or “no”. Let me try to give you a straight answer without a bunch of legal gobbledygook.
A disabled child is entitled to Social Security disability—but only to SSI benefits because the child has never paid Social Security taxes and cannot, therefore, be entitled to SSDI. On June 7, 2016, Speaker of the U.S. House of Representatives Paul Ryan (R-Wisconsin) released an outline of Republican proposals to address poverty. The report, called “Poverty, Opportunity and Upward Mobility,” is available at http://abetterway.speaker.gov/assets/pdf/ABetterWay-Poverty-PolicyPaper.pdf
At this time, no legislation based upon this report has been introduced in Congress. Among other things, the report recommends at page 12 the elimination of children’s SSI. Instead of monitory benefits, the children would receive “in-kind services.” The theme of the report seems to be that people who receive money for disability tend to get comfortable with living a life of disability and that people who receive services that help them learn to work despite a disability tend to get off of disability. The proposal states:
“Reform Supplemental Security Income to Focus on Needed Services: One of the most concerning trends in the SSI program is the rising number of children coming onto the program. The average lifetime stay on SSI for people who come onto benefits as children is an incredible 26.7 years. Further, a disturbing 30 percent of older teens on SSI have dropped out of high school, which only adds to the barriers they face in going to work and leading productive lives as adults. Access to needed services in lieu of cash assistance, whether it be mental or physical therapies, or special-education services in school should be the focus of the SSI program.”
On December 6, 2016, the Missouri Court of Appeals ruled that before any grandparent could get a court order granting visitation rights with a grandchild, the grandparent would first have to show that s/he had been unreasonably denied visitation for a period of more than 90 days. Paul T. Graham, LLC, represented the Mother in her appeal, and she won. The case is Massman v. Massman , -- S.W.3d – (ED104053, December 6, 2016), decided by the Missouri Court of Appeals, Eastern District.
Section 452.402.1, RSMO, provides grandparents rights to court-ordered visitation in limited circumstances. The first circumstance is divorce. A grandparent can get an order of visitation where the parents of the grandchild have filed for divorce and the grandparent intervenes in the divorce proceedings. Or if the parents are already divorced, the grandparent can file a motion to modify the divorce judgment to get visitation.
The second circumstance where a grandparent can get an order is where the grandparent’s child, who was also the parent of the grandchild, is deceased and the grandparent is being denied reasonable visitation.
The third circumstance where a grandparent can get an order is where the grandchild has resided in the grandparent’s home for at least six months within the 24-months immediately preceding the filing of the petition for grandparental rights.
After laying out the three circumstances where a grandparent can get an order— in paragraphs numbered 1, 2, and 3—Section 452.402.1, RSMO, adds a fourth paragraph. It states that a grandparent can get visitation if s/he “is unreasonably denied visitation with the child for a period exceeding ninety days.” The first three circumstances are hooked together with the word “or”. The 90-day provision is hooked onto the end of the list with an “and”. How does the statute work? Does the 90-day rule apply to all the other situations? To just the third circumstance? To any?—does it just stand out there by itself?
In Massman v. Massman the child’s father had died. The Judge of Osage County, Missouri, agreed with the grandparents’ argument that the 90-day rule did not apply to them. The Court of Appeals disagreed with the Osage County Judge and found that the 90-day rule was the gateway requirement for all three of the circumstances where a grandparent could get visitation. Thus, if there is a divorce and a grandparent wants visitation, the grandparent must show the court that the child’s parents are divorcing or are divorced and that s/he has been unreasonably denied visitation for more than 90 days. If one of the child’s parents is deceased and the other parent is denying reasonable visitation, the grandparent must show the court that his/her child is deceased and that s/he is not getting reasonable visitation, and that s/he hasn’t gotten any for 90 days. If the child has lived with the grandparent for six months, the grandparent must show that fact and that /she hasn’t gotten any visitation for 90 days. After Massman v. Massman , that’s the law.
The Court of Appeals backed up its decision in two ways. First, the Court looked at the plain dictionary meaning of the words “or” and “and” and decided that when the General Assembly had strung three conditions for visitation together with the word “or” but hooked the fourth condition on at the end with the word “and”, the General Assembly meant it when it said “and”.
But cases don’t usually get decided just on the basis of a dictionary. So second, the Court of Appeals looked at some Missouri Supreme Court cases and at a case from the United States Supreme Court. The United States Supreme Court case was Troxel v. Granville , 530 U.S. 57 (2000). Troxel had upheld a Washington state Supreme Court decision which had thrown out a Washington law that allowed someone other than a child’s parents to have visitation rights. Troxel was based upon the United States Constitution and the “fundamental” right it gives a parent to raise her children and to say who might visit the child. The essence of Troxel was that because the parents’ rights are fundamental, they can be interfered with in only very limited circumstances. (Side Bar: In fact, Troxel actually said that visitation can’t be granted just because visitation might be in the child’s best interests. Why not? Because under the Constitution a judge doesn’t get to second guess a parent’s decision about her child’s best interests about third-party visitation. Even if the judge is right and the parent is wrong! )
After reviewing the Troxel case, the Missouri Court of Appeals looked at some Missouri Supreme Court cases, notably Herndon v. Tuhey, 857 S.W.2d 203 (Mo. banc 1993) , and Blakely v. Blakely , 83 S.W.3d 537 (Mo. banc 2002) In these cases, the Missouri Supreme Court had upheld the constitutionality of Missouri’s statute—versions previous to the one we had in Massman —specifically because of the 90-day rule. The Missouri Supreme Court had held that the 90-day rule set up a check-point road block that limited the circumstances under which a parents’ fundamental parenting rights could be interfered with. The Missouri Supreme Court held that because Missouri’s law had this check-point, Missouri’s law was constitutional. But in Herndon and Blakely , the question wasn’t whether the 90-day rule applied in every case. It just happened to apply in those cases, so in those cases Missouri’s law happened to be constitutional. The General Assembly knew that that wasn’t a good way to leave things, and so the General Assembly stepped in after those cases were decided and enacted the current statute.
Massman v. Massman held that the General Assembly has finally cleared the whole thing up. When the General Assembly came along after Troxel , Herndon , and Blakely and reorganized the statute to emphasize the 90-day rule, the General Assembly was just making sure that the statute could be applied constitutionally in every case. Because the 90-day rule had saved the statute in Herndon and Blakely , the General Assembly decided to make the 90-day rule apply in every case. That is the essence of Massman v. Massman .
More and more people are using CPAP machines prescribed by their physicians. In many cases, CPAPs are being prescribed to help with sleep-related breathing disorders where interrupted breathing–sleep apnea–interrupts normal sleep.
Interrupted normal sleep can lead to chronic anxiety disorders, high blood pressure and chronic heart failure. Chronic anxiety disorders can morph into full-blown chronic panic disorders, and high blood pressure can lead to stroke and heart attack.
Recently, the Social Security Administration revised its respiratory Listings, and as a part of that revision laid out some new rules on how sleep-related breathing disorders will be evaluated. Listing 3.00P explains that whether a breathing disorder is disabling will be evaluated under the listing for the affected body system. For example, chronic pulmonary hypertension (Listing 3.09), chronic heart failure (Listing 4.02) and disturbances in mood, cognition and behavior (Listing 12.02) may be considered. Listing 3.00I explains that obesity is a medically determinable impairment that is often associated with disturbance of the respiratory system and that such a disturbance can be a major cause of disability in individuals with obesity.
Insurance companies say they are losing money because of the Affordable Care Act, also known as “Obamacare.” Anthem, Inc. has reported that because of “higher than expected medical costs,” it has been sustaining an operating margin loss on its ACA plans in 2016. UnitedHealth Group, Inc., has confirmed that it is getting completely out of the ACA marketplaces in 2017. Anthem reports that it is going to be raising its premiums on policies sold on the ACA exchanges.
The fact is that the exchanges have brought the proportion of uninsured Americans to an all-time low, according to a report prepared by the consulting firm McKinsey and Company. But according to the report, the transition into Obamacare has been rocky and up and down for the insurance companies. And according to the Wall Street Journal, insurance companies are giving up and ending their exchange offerings.
Not surprisingly, the McKinsey report states that the insurance companies most likely to be making profits are also the ones that are most aggressively managing care by emphasizing prevention.
A step back, however, should make it clear why insurance companies could lose money on exchange policies—and why aggressive management, i.e., claim denial, might not be the fix. One could guess that the people who are acquiring insurance on the exchange are those who literally fell through the cracks before the ACA was enacted. These may be the folks who, before the ACA, could not get insurance because of pre-existing conditions, or needed maternity care, or required mental health treatment. But these are the same people who did not qualify for Medicaid or Medicare because their conditions did not disable them and qualify them for these programs. That was the crack they fell through. The ACA now requires insurance companies to cover all these conditions and people if the insurance companies are going to participate in the ACA exchange at all. If an insurance company is into the exchange business for a penny, then it’s in for a pound.
This may not be rocket science. If the ACA is requiring coverage for treatment of a thousand people now instead of the five-hundred people who had coverage before the ACA and the second group of five hundred is comprised of all those sick people who could not get coverage before the ACA was enacted because they were sick and are now getting coverage and treatment and getting the treatment more frequently than the well people who comprised the first five hundred, one would expect the costs would go up.
But one is then left with a question: Why did it cost so much money to insure all the well people who weren’t getting treatment before the ACA required insurance companies to insure the sick people and pay for their treatment? Something I have noticed over the years is that the more “management” insurance companies impose on care, the higher the costs. If you have a bunch of people employed by the insurance companies whose job it is to second-guess the doctors and if you have a bunch of people in turn employed by the doctors and hospitals who spend their days on the phone arguing with the insurance companies’ second-guessers—and you have to pay all these salaries on both sides of the arguments–what would you expect to happen next?
Anyone going through a divorce should consider doing some estate planning. The dissolution of a marriage dissolves the legal bonds between the married parties that were created by the marriage. But it does not remove the bonds between a parent and a child. The continued existence of these legal bonds becomes very evident when a child becomes disabled or when one or both of the child’s parents re-marries. What happens to your property if you get re-married, your new spouse has children, then you die, and then your new spouse dies?
Often people come to me and ask how they can arrange their affairs so that their ex-spouse can’t get ahold of their property when they die and their minor or disabled adult child inherits their property. They ask if they can prevent such a thing happening with a power of attorney or by appointing a sister as the child’s guardian. Short answer: Those solutions won’t work, but they are on the right track. A power of attorney won’t work because while it gives an “attorney in fact” power over property, it won’t outlast your death and because it doesn’t actually keep other people from also getting control of the property. Designating a guardian for the child may not work because only a court can actually appoint a guardian, because the court has the last word on who a child’s legal guardian will be, and because a person who is appointed legal guardian and conservator of a child is then given control of the property owned by the child. A much better solution would be a living revocable trust that appoints the sister as the trustee and, therefore, the legal owner of the property in question. The ex-spouse might be appointed the child’s guardian and conservator by a court, but the court cannot then give that ex-spouse control of property that is already in a trust.
Other people come to me, ask the question above, and then complicate it further with the question of how to arrange their affairs so that they can re-marry and protect their property from the claims of the children of the man or woman they want to marry. Of course, the other party to the prospective marriage may have the same concerns. A solution in such a case may be a revocable living trust wrapped up inside of a post-nuptial agreement.
The point here is not to go through the entire list of estate planning tools at the disposal of a family lawyer. The point is that a family lawyer should have those tools in the tool chest and that while the dissolution of a marriage may solve some problems by dissolving the legal bonds between the married parties, the divorce solves only one problem and leaves the other problem behind: how to protect a child’s rights and needs from an ex-spouse and from the claims of strangers.
So the work is only partly done at the end of divorce proceedings. One set of legal relationships has been dissolved. But another set of legal relationships still exists—with the children; and a third set of legal relationships may be in the future—with a new family. As the family lawyer helps dissolve and adjust the legal relationships with an existing family, the family lawyer can also help look down the road and plan for the new family relationships and help head off collisions between the first family and the second family.
that Donald Trump has been elected President, it is a good bet that the
movement to repeal Obamacare will go into high gear. It is also a fair bet that no one will want
simply to return to the old system. At
least under Obamacare, you can’t be denied insurance because of pre-existing
conditions and everyone has a right to health insurance. So Congress and the President may have to make
haste slowly in repealing Obamacare.
The objections to Obamacare are instructive on where we should go next. Of course, one objection has been to the mandate to cover contraceptives. That’s a moral objection. Another objection has been to requiring young people who might be less likely to need health care to have insurance.
Another objection has been to the costs—for individuals and employers. In looking at replacing Obamacare, among the biggest concerns will be to control costs, to allow people to choose their doctors, and to insure that care and all proper treatment options are readily available.
It is inconceivable that Trump or a Republican congress will socialize medicine. Costs could perhaps be controlled by socializing medical care, but then the concern would be that ultimately the government would be dictating and rationing our medical care; that the government would control the development of medical science, applying financial, political and moral agenda; and that the government would overall just chill medical research, etc., by killing profits.
Another approach would be to expand Medicare to cover everyone. With a view towards controlling costs, Medicare negotiates prices with hospitals, doctors and other providers on a regular, periodic basis. A Republican congress may not like this, but at one point in the past Trump expressed support for a “single payer” system, which is, essentially, how Medicare works. According to the Kaiser Foundation, already 17% of the population of the United States was on Medicare in 2015. Those on Medicare include the aged and disabled persons receiving SSDI.
Taking insurance companies and their profits out of the picture through a Medicare expansion with the government directly negotiating prices with providers would seem to be a reasonable idea. It is not completely clear why anyone—including insurance companies—should be making a profit for simply moving money from point A to point B (collecting money from premium payers and sending it to doctors). On the other hand, insurance companies may seem useful in the system to help keep costs down through “utilization review.” Utilization review refers to the process by which an insurance doctor reviews a treating doctor’s work to make sure that it is medically necessary and should be paid for. Obviously, that process can be abused if the endgame is simply to leave the savings in an insurance company’s pocket and call it “profit.” But that process serves a purpose if it legitimately keeps costs down.
Although Medicare is funded through Social Security taxes and, thus, is financially run directly by the government, the medical providers are in no wise employees of the government nor does the government in anywise regulate their practice or care. So Medicare, as it currently operates, is not the same as socialized medicine. But whether expanding Medicare from 17% of the population to cover everyone would inevitably tend to socialize the system requires more reflection. Obviously, if insurance companies are no longer in the picture anywhere conducting “utilization review” to keep down costs, something has to pick up this slack. And if the government provides its own utilization review doctors, then our worst nightmares of socialized medicine would be upon us: Government doctors would end up dictating our medical care.
If there were a quick fix with no downsides for every upside, we would not be having this conversation. In leaving this blog, I would throw out this idea: How about expanding Medicare to cover everyone; have the government provide utilization review doctors to help control costs; but make those utilization review doctors directly accountable to the patients for malpractice and directly accountable to state boards that regulate the practice of medicine for medical ethics violations? This sort of thing is not unheard of. In 1986, Paul T. Graham brought a suit against the United States and recovered for a dairy farmer who had lost his entire dairy business as the result of the malpractice of a veterinarian employed by the United States. This action was brought under the United States Torts Claims Act, which could be expanded to cover governmental utilization review doctors. The idea would be to keep the government’s utilization review doctors properly focused above all on a patient’s care.
Are you keeping up with Governor Jay Nixon cutting funds to the PD? Then you will enjoy this letter to Nixon about him cutting funds.
The Missouri Court of Appeals, Western District, issued an opinion in Rackers v. Rackers, –S.W.3d— (Mo. App. W.D. 79077) on October 4, 2016, reversing the judgment of the Circuit Court of Cole County. Paul T. Graham, LLC, represented the winning party. The judgment reversed concerned child support. The question presented concerned Line 11 of the Form 14. Missouri Courts use the Form 14 to set child support. Each party’s monthly income is placed on Line 1 of the Form 14, and the lines between one and 11 account for things like the need to support children by other marriages or relationships, childcare expenses, health insurance premiums, and extraordinary expenses. Line 11 then provides for a discount to the parent paying child support in recognition of the expenses which s/he will incur on account of the overnight visitation which s/he receives.
In Rackers v. Rackers, two rules seemed to collide. One of those rules said that if the parent receiving child support is making less than a certain amount—in this case $1,700 per month—then the other parent gets no Line 11 discount unless (a) the parent entitled to get child support is underemployed or unemployed because his/her expenses are being paid in whole or party by someone with whom s/he cohabits; or (b) the income of the parent paying child support minus the presumed child support is equal to or less than a certain amount—in this case $1,700 per month. In Rackers, mother’s income was far below $1,700 per month because she was wholly disabled, and father’s income was far about above $1,700. But the Circuit Court of Cole County gave father a 50% discount at Line 11.
The second rule involved in Rackers was the rule that said that the Line 11 discount assumes that the parent who is paying support is not paying “non-duplicated fixed expenditures.” Examples of “non-duplicated fixed expenditures” are clothes. Often the parent receiving child support is buying the children’s clothes, and those clothes go back and forth with the children during visitation. If the parents share the kids 50/50 both are providing clothes for the children, then the Line 11 assumptions don’t apply. The Circuit Court of Cole County concluded that the second rule trumped the first rule and gave the parenting paying support a 50% discount based upon a finding that he was paying for clothes, etc.
In Rackers v. Rackers, the Court of Appeals reversed the Cole County judge, finding that (a) regardless of whether father was paying for clothes, etc., he was entitled to no discount at Line 11 because mother’s income was below $1700 per month, but that (b) the Cole County judge should look at the case again to decide whether the application of the guidelines was unjust and inappropriate. The lesson? If the Line 11 discount does not apply because the person receiving support is receiving very little income, the Line 11 discount does not, nevertheless, still get applied just because one of the assumptions on which the guidelines are based does not apply. Instead, the question becomes whether to apply the guidelines at all. The question becomes whether the application of the guidelines is unjust and inappropriate.