Monday, November 22, 2010

Why Can't Everyone Just Get Along?!?

Well, I have certainly had one of those days that where you start out the day thinking it's going to be an easy day, but then rapidly turns into a busy and stressful day.  Why?  Because people who have children together, but are no longer in a relationship, have a difficult time getting along.  This is certainly not a jab at people in these situations, as its completely understandable that it would be difficult for two people who were formerly involved in a romantic relationship or even married have a difficult time talking, relating, and working with one another after the breakup.  However, where there are children involved, it is necessary for the parents to talk, relate, and work with each other for the benefit of the child.

That's why I was so happy when I stumbled across the blog of a colleague in Illinois, who also practices family law, that discussed these types of issues.  This article provides an overview of the topic of getting along with a former spouse, boyfriend, or girlfriend.  As Kristy points out in that article, there are resources out there, including on,,, and a variety of other websites and books, to help people learn how to get along with and relate to their former spouse, boyfriend, or girlfriend.

So remember, it's important for the sake of your children (as well as to make sure that you don't spend their college funds on attorney fees) to try to work out issues with the other parent, if possible.  And then, if you and the other parent are really not able to work out the issue, take it to your attorney for assistance and possibly new ideas.

Thursday, November 11, 2010

Answers to Questions on

I have answered questions on a variety of topics on, and thought that I would share those answers here.  I hope that you find them helpful.

The History of Veteran's Day

I received the link to this article in a list serve that I subscribe to.  It was new information to me, as I didn't know why our country began celebrating Veteran's Day or why it is always on November 11th, rather than on a Friday or Monday.  I hope that you will read the article and learn a little more about why we celebrate this holiday.

Happy Veteran's Day to those who have served, those who currently serve, as well as to their families!  Thank you for ensuring that America remains the symbol of freedom for the world to see.  

Wednesday, October 27, 2010

Preparing For Your Death

As Halloween is fast approaching, I thought that I would post about a rather morbid topic--preparing for your death.  Now we all know that death is inevitable, but we don't like to think about it.  However, it is really important that we have our plans in order so that our loved ones don't have to make these decisions for us while they are grieving.  So, I have prepared this list of a few of those things that we must all do in order to prepare for our deaths.  But remember, this type of a checklist can only be effective if we do those items on the list and if we put the completed checklist in a place where our loved ones can find it after our death.

1. Prepare a will.  I have previously posted on the importance of having a will, so see this post for more information about why a will is necessary.

2. Decide whether you would like to become an organ donor.  Organ donation can save many lives as well as enrich many lives, however, it is an intensely personal decision.  It is important to make this decision as early in life as possible, as we never know what may happen to us.  It is even more important to tell our family members of our decision and to memorialize the decision on our driver's licenses.

3. Decide whether you would like a funeral or a memorial service, and plan the service.  In essence, the difference between the two is that the body is present for a funeral and is not present for a memorial service.  A service typically involves use of poems or scripture, songs, and eulogies.  There are many websites available that assist in deciding what to songs, poems, and scripture to use.  Funeral directors as well as clergy can also be useful resources, as they have experience in planning these services.  However, remember that the service will be about you, so your preferences should be key.  The service can be very traditional or can be very unique.

4. Decide whether you would prefer burial or cremation.

5. Choose a funeral home.  Choosing a funeral home can make a world of difference for the family of the deceased.  It is important to focus not only on the cost, but also on the staff of a funeral home.  If they are easy to work with, professional, and kind, it will make the experience much easier for family.

6.  Keep copies of your will, living will, durable power of attorney, insurance policies, your checklist of wishes, funeral plans, and other important documents together in a fireproof safe where your loved ones are able to find it.  In the age of Internet, it is also wise to keep a list of your email and other online accounts with user names and passwords so that these accounts can be closed.

There are books and articles written on planning for death that are much more extensive than this post.  One that I have not read, but which seems to be well received is Death for Beginners.  A review of the book can be found here.

Obviously this list is not comprehensive, but instead is meant to get you thinking and planning for the eventuality of your death, so that it will be easier for your loved ones.  Please feel free to add additional items in the comments to this post, or to e-mail me.

Update 11/01/2010: This morning, I saw this interesting post about options for your body after death besides the traditional burial or cremation.

Tuesday, October 12, 2010

A couple of interesting stories about South Dakotans

Hi everyone! I know that this is a bit different than my previous posts, but I just wanted to share a couple of clips about some very interesting South Dakotans. I found these stories compelling, and hope you will, too.

Hope you enjoy!

Friday, October 8, 2010

Exceptional Pardons & Expungement of Convictions

After my previous post on expungements of arrest records and court files when charges have been dismissed or trial results in acquittal, I have received inquiries about whether South Dakota permits expungement of convictions. My initial answer was no, South Dakota law does not provide for expungement of convictions. However, after a bit more research, I have found that there is an additional procedure which may accomplish some of the same goals as expungement of a conviction, but which has several restrictions on its use--an exceptional pardon.

Exceptional pardons are considered "executive clemency" and are governed by SDCL Chapter 24-14 and ARSD 17:60:05. According to the South Dakota Board of Pardons and Paroles Executive Clemency Application, "[i]f it has been five years since your release from a Department of Corrections facility, and you have only been convicted of one felony, and your only felony was not punishable by life imprisonment, you are eligible for an Exceptional Pardon."

Once an individual receives an exceptional pardon, the records relating to that conviction are sealed, meaning that no one can look at the file without an order of the court. However, the exceptional pardon itself is maintained by the Secretary of State's office, and is a public record open to inspection for five years after the pardon is granted. After five years, the exceptional pardon document is also sealed. Immediately upon the granting of an exceptional pardon, the individual cannot be prosecuted for perjury for failure to disclose the conviction, arrest, information, indictment, or trial on the pardoned offense. Court files, from other types of executive clemency (i.e. anything other than an exceptional pardon), are not entitled to be sealed.

There are several documents that must be received by the Board of Pardons and Paroles to consider a request for an exceptional pardon:
- The completed Executive Clemency Application (with questions answered fully or with "N/A").
- The completed Notice to State's Attorney form.
- The completed Executive Clemency Application Release of Information.
- Letters of recommendation (referencing that the letter writer is aware that the applicant is seeking executive clemency) from minister, former & present employers, reputable persons in the community, family and friends are strongly encouraged, although not required. If the applicant does not include letters of recommendation, an explanation is required.
- A psychosexual evaluation (for sex offenders only).
- A chemical dependency evaluation (for those convicted for drugs and alcohol only).
- A psychological evaluation (for those with diagnosed mental health issues only).
- Proof of payment of court costs, fines and restitution for each conviction.
- A Department of Corrections Discharge Certificate.
- Certified Copy of Sentence and Judgment.
- Proof of Service on each State's Attorney.
- Written statement of the applicant describing the crime/incident.
- Letter of personal plea from the applicant.

It is possible for an applicant to submit these materials pro se (without being represented by an attorney). However, consulting with a criminal defense attorney is wise, as that individual will have experience in handling these types of applications, and can advise the applicant as to the likely merits of the application and how to best posture the application (i.e. whether certain letters are helpful, whether the applicant should seek treatment, counseling, etc.).

Whether the applicant chooses to apply pro se or chooses to seek the assistance of an attorney, it is wise for the materials to be presented in the most coherent and organized fashion as possible. Having the documents put into a binder or binding the application is a good idea, so that materials cannot be separated and lost. Using tabs and separating pages is a great idea, so that the Board is able to easily find the documents that they are looking for.

Tuesday, October 5, 2010

Children of Incarcerated Parents

I'm currently appointed to represent several children in abuse and neglect proceedings. Among my clients are children of parents who are currently incarcerated and children of parents who have been incarcerated at some point in their lives. So when I saw this post on the Freakonomics blog of the New York Times, stating that 1 in every 28 children in America has a parent behind bars, I was really intrigued. Intrigued that incarceration of parents affects so many children, and intrigued to find out what kind of impact that has on those children. It also made me start thinking about what parents do with their children when they are looking at either long or short term incarceration; and how are those children's needs being met when their parents are not earning an income during incarceration, or are only earning an income sufficient to buy cigarettes and candy.

According to at least one source, the number of incarcerated individuals has grown every year for the last 36 years. According to another source, more than one in every 100 adults in the U.S. are incarcerated in either prison or jail. 63% of those who are in federal custody and 55% of those who are in state custody are parents of a child under the age of 18 (a different source states that 54% of all inmates have children between the ages of 0 and 17). This means that over 1.5 million children have a parent who is serving a prison or jail sentence; that's approximately 2% of American children. Of those children with incarcerated parents, 22% are under the age of five; and their average age is 8 years old.

What does it mean for children to have an incarcerated parent? Financial instability, family relationship instability, school performance and behavioral issues, and stigma (see this). Some of these issues, especially financial instability, continue long after the parent is released from custody. This is because "[i]ncarceration reduces former inmates' earnings by 40 percent and limits their future economic mobility," according to a Pew Report (the full report and a summary). In addition, incarceration not only negatively impacts the inmates upward economic mobility, but also the economic mobility of children of inmates.

So what do parents do with their children when they are going to prison or jail? Typically, parents make arrangements with a family member or close friend to care for the children while they are incarcerated. This appears to usually be done informally, either with nothing in writing, or a power of attorney written by the parent. It appears that parents and those who care for the children of incarcerated parents do not typically go through a formal guardianship process, although this is highly recommended. A formal guardianship, including a temporary guardianship, provides stability and certainty to the relationship. A guardianship means that the child's caretaker will be given access to information about the child and will be able to make medical and other types of decisions regarding the child without any delay or uncertainty.

How are children's needs being met while a parent is incarcerated? South Dakota law requires parents to pay child support for their children, even while incarcerated. If the parent's income is below minimum wage, or even zero, the parent is presumed to be capable of full-time employment at minimum wage. This means that child support is calculated based upon that full-time employment at minimum wage for an inmate, unless there is physical or mental disability. However, where the inmate makes just a few dollars per day, they are likely to not be able to meet the child support obligation and will come out of prison or jail with a large amount of child support arrearages. This also means that the state often must get involved and provide benefits to support the child.

There are resources available to help those who are dealing with the incarceration of those with children. See these free publications if you are in this type of a situation or may be at some point. In addition, an attorney can be really helpful in setting up a guardianship, obtaining child support, or even just helping you know what you need to do.

Monday, September 20, 2010

What To Do (& Not Do) When Speaking for Court Reporters

During my clerkship in Sioux Falls, I took on a part-time job working with a court reporting program. My primary job duty consisted of dictating materials for court-reporting students to take down on their stenography machines. In addition to my official job duties, I considered the part-time job to be a valuable learning tool for myself to learn how to best speak so that the court reporters I come across in my career can make a solid record. I had no experience with court reporting prior to that part-time job, but certainly now know a whole lot about court reporters' preferences. So, as most people are not fortunate enough to get the opportunity to hear straight from the court reporter's mouth, I thought I'd pass along those pointers that I learned from my time working in a court reporting program. These apply pointers apply to attorneys and to witnesses.

#1: Speak slowly.
Most people speak too quickly, especially when they are nervous. People are more likely to be nervous when in court or in a deposition, and this is when court reporters are trying to take down every word that you say. Therefore, if you would like the court reporter to take down every word that you say, speak slowly. Chances are that you are probably speaking more quickly than you think, anyway. This rule is even more important if you are using medical terminology or other specialized terms which the court reporter is not likely to encounter very often.

#2: Read even more slowly.
People read much more quickly than they typically speak. If the document that you are reading is important (and it probably is, or you wouldn't bother to read from it), then you should slow down while reading to make sure that the words are on the record.

#3: Spell difficult names & specialized terms of art.
If your name is Smith or Jones, you don't need to spell it. If your name is more complicated, spell it for the court reporter (and don't forget to spell slowly). The same rule holds true for medical terms or other specialized terms. If you would like the transcript of the hearing/deposition/etc. to have correctly spelled words, and those words are not in the lay person's vocabulary, spell them for the court reporter.

#4: Don't go off on tangents.
If the court reporter asks you to repeat something that you have said, do just that--repeat what you said. Do not go off on a tangent explaining the concept or background story to the court reporter. The court reporter was not asking you to repeat yourself because s/he did not understand what you were talking about, but only because s/he did not hear or understand the words that you said.

#5: Do not interrupt or speak over another person.
A court reporter can only take down one speaker at a time. When people talk over one another or interrupt each other, the record becomes muddled and may even be missing some of what was said. Wait until one person has finished speaking before you speak.

#6: Answer out loud, using real words.
Do not nod or shake your head, as a court reporter can only take down verbal responses. Try to minimize mmm-hmm, hmm-mmm, uh-huh, and huh-uh, as these can be taken down by the court reporter but are open to interpretation. Use "yes," "no," and other real word verbal responses.

#7: If the court reporter is marking an exhibit, do not speak.
When the court reporter's hands are off of the machine, s/he cannot take down what is being said. Therefore, when the court reporter is marking an exhibit (i.e. writing on an exhibit sticker and placing that exhibit sticker on a document or other type of exhibit), s/he cannot possibly take down what is being said, and attorneys and parties should not speak at this time.

Tuesday, September 14, 2010

You Have the Right to Remain Silent

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." These words begin those famous warnings that we all know from television cop shows as Miranda warnings. My guess is that most people do not think twice about what these words mean when a police officer has just read their rights to them. This is understandable. When a person is in a situation in which a police officer is reading Miranda warnings, the person is in the custody of the police, may be in handcuffs, may be in the back of a police car or in a small interrogation room of a police station, and likely feels extremely vulnerable and unsure about what is happening. However, this is the time when you need to think about what police officers are telling you and what it means for you. So here is my quick and dirty guide to why you should listen to the police and invoke your right to remain silent.

When the officer is telling you that anything you say can and will be used against you, they mean it. Rules of evidence permit statements made by a criminal defendant to be admitted into evidence, whether the defendant testifies in court or not. Even if the statements do not seem to be harmful to your case, they very likely still may be. When you are being interrogated by the police, you have no idea what other evidence they may have against you. Unless you are an attorney or have done a substantial amount of research into the elements of each individual law, you probably also do not know what the State must prove in order to convict you of a crime.

As Darryl A. Goldberg stated in his 2008 article entitled, Responding to the Middle-of-the-Night Call from an Arrested Acquaintance, "A confession is the most powerful piece of evidence for the prosecution. What you see on TV certainly rings true in almost every case: whatever you say can and will be used against you." Confessions are often the main piece of evidence used to convict a criminal defendant. Keep quiet, do not confess to a crime or make any statements that could be used to prove that you committed a crime, and the State's job of proving you guilty is much more difficult. Moreover, research has shown that even innocent people sometimes make incriminating statements or outright false confessions. See this, this, and this. Don't take the risk that your statement may be interpreted as incriminating or that you may succumb to police pressure.

So how do you make sure that questioning ceases and that you will not continue to be questioned? Simply say: "I do not wish to speak with you. I would like to speak with an attorney right now." This ensures that you have invoked your right to remain silent, and also that the questioning must cease because you have requested an attorney. In addition, you should then speak with a criminal defense attorney as soon as possible, so that the attorney may represent your interests in dealing with police and with the State and ensure that you are not questioned further.

Sunday, September 12, 2010

You (Yes You!) Need A Will, Too.

Recently, my boyfriend became an uncle. His brother and sister-in-law became the proud parents of a beautiful baby boy. That combined with the large number of my friends who have recently gotten married, purchased houses, and begun having children made me start thinking about estate planning. Really, I kid you not, it did.

Many people think that they do not need a will. However, I believe that many of these people have not really thought through the consequences of dying intestate. Ask yourself, do you know how the laws of intestacy will dispose of your property? Have you thought about what dying without a will means for your loved ones in administering your estate? Have you thought about what would happen to your children if you die without a plan for them?

Estate planning is more than just a will telling everyone who gets your "stuff" when you die. It is a plan for who makes decisions about that "stuff." It is a plan for who takes care of your children and makes decisions regarding their welfare when you die. Estate planning can include plans for how you would like your remains handled after you pass away through the inclusion of burial & funeral plans. Estate planning can also include reassurance to your loved ones about your faith in a higher being.

For many though, estate planning also includes decisions about end of life issues through documents such as living wills and powers of attorney. These types of documents allow you to make decisions about medical treatments in the event that you are in a terminal condition and are unable to participate in making those decisions. They also allow you to decide now who is able to make financial and business decisions for you in the event that you are unable to do so.

When you are ready to begin estate planning, you should consult with an attorney. Estate planning attorneys are able to assist you in meeting your goals for end of life care as well as how you would like matters handled after you die. I urge you not to rely on a computer generated will, living will, or power of attorney or to simply "do it yourself." See this and this for problems that can occur from DIY and computer-generated wills. Only through consultation with a competent attorney will you end up with documents which meet your goals and which are in accordance with state law.

So, what are you waiting for? Call your attorney and get your estate plans in order!

Thursday, September 2, 2010

Walk the Line & I Don't Mean Johnny Cash

We've all heard of the field sobriety tests administered by law enforcement after a traffic stop to determine whether a driver is under the influence of alcohol--walk the line, touch your nose with your fingertips, recite the alphabet backwards, count forwards and backwards, etc. Performance on the field sobriety tests can be used by law enforcement to prove that the driver is under the influence, even if the driver is not over the legal limit. Because these tests are designed to provide law enforcement with probable cause and to prove the case that the driver is under the influence of alcohol; and it is, as a result, a really bad idea for drivers to complete the tests whether they have had one drink or many.

Many people think that complying with law enforcement's requests to do these tests is required. But in South Dakota, compliance with field sobriety tests is not required. According to SDCL 32-23-1.2, "Every person operating a vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter." In layman's terms, this means that drivers must submit to a breath test, also know as a PBT test. If the breath test indicates that the driver has been drinking, the driver may then also be required to submit to a blood test. SDCL 32-23-10 also tells us that by operating a motor vehicle in South Dakota, we have implicitly consented to a test of our blood. Refusal to complete a breath or a blood test can also be admissible as evidence of guilt. See SDCL 32-23-10.1.

Recent research makes clear that lay people, bartenders, doctors, and even police officers are not very good at distinguishing between drunk and sober people. When distinguishing between drunk and sober is difficult for even trained professionals, it is nonsensical to assist police officers in their efforts to find probable cause or prove that you have been drinking when they otherwise may not be able to make such a determination. This is especially true when that same research illustrates that even structured means of assessing the level of intoxication (such as field sobriety tests) may not be terribly effective in truly determining whether someone is under the influence or not.

So what does all of this mean? If you are stopped by law enforcement in South Dakota, here are some handy tips:
(1) Do not participate in field sobriety tests;
(2) Be polite throughout the encounter, especially while refusing to do field sobriety tests;
(3) Do not make statements such as, 'I couldn't do those tests even if I were sober!';
(4) Do agree to a breath or blood test if required to do so.

Wednesday, August 25, 2010

Protection Order Petitions & Hearings-What to Do & What Not to Do

During my time as a law clerk for the Second Circuit in Sioux Falls, I had the opportunity to read many protection order files and to observe many protection order hearings. What struck me most about those cases is the vast number in which the parties were pro se (not represented by an attorney, but rather representing themselves). Therefore, I must begin this post by reminding people, and encouraging them, to hire an attorney to represent them in protection order cases. That being said, this entry is designed to provide guidance to attorneys and pro se litigants alike as to how to draft the most effective protection order petition possible, as well as how to handle the protection order hearing. However, I in no way mean to suggest any kind of guarantee of success. Protection order cases are intensely fact specific and depend a great deal upon the credibility of the witnesses at the hearing.

Tip #1: Keep it simple.
The judge does not need the entire life story between the parties and their families and friends. The judge does not need a transcript of conversations that you had with your family and friends about the respondent. The judge needs the facts about what occurred and when. Judges are exceedingly busy people, and typically have several protection order files to read, and several protection order hearings scheduled in a block. Therefore, it is in the best interests of a petitioner to be succinct and clear in making his/her point.

Tip #2: Use names and relationships to make the petition clear.
Use the names of the petitioner, respondent, and other individuals if it will make the petition easier to understand; if the names & relationships won't make it easier to understand, leave them out. However, do not assume that the court understands the relationships between the parties. Make sure that you explain relationships (mother, father, friend, daughter, cousin, brother, etc.) where necessary. However, do not forget tip #1 to keep it simple. If a person or relationship is not necessary to understanding the what occurred and when, leave it out.

Tip #3: If there are physical injuries, include pictures.
A picture says a thousand words. If there are bruises, cuts, stitches, etc. include pictures in the petition. The judge will look at them.

Tip #4: Read & follow instructions.
There are instructions that accompany the protection order petition. Read them and follow them. Read the questions on the petition form carefully and answer the question asked.

Tip #5: Realize that a police officer's recommendation that you file a protection order is not dispositive.
Police officers frequently recommend that individuals seek protection orders if they are fearful. Judges do not give this recommendation much, if any consideration. The recommendation is made by police officers frequently, and certainly does not mean that the elements for granting a protection order have been met.

Tip #6: Dress appropriately for the hearing.
Appropriate dress in a courtroom does not include jeans, t-shirts, tennis shoes, revealing clothing, or work attire. Parties certainly are not required to wear a suit to court, but a pair of dress pants and a button down or polo shirt for men, and a skirt/pants with a nice blouse or a dress for women are appropriate. Although a judge will hear your case impartially no matter what you wear, attire certainly is considered, even if subconsciously, in determining credibility. Do your best to look presentable in court.

Tip #7: Be on time.
Do not be late for a hearing. Showing up early for a hearing is acceptable and even encouraged. In fact, depending on how the particular circuit handles protection order cases, it may even give you an opportunity to observe the judge and the procedure for handling protection order cases.

Tip #8: Ensure that the court makes adequate findings and conclusions on the record.
The South Dakota Supreme Court decided Shroyer v. Fanning, 2010 SD 22, this year. The case makes clear that findings of fact are required, because no review is possible in the absence of adequate findings.

Tip #9: File responsive affidavits.
If you are a respondent or if you represent a respondent on a protection order, it is a good idea to file a responsive affidavit. In most cases, the judge or the judge's law clerk reads the protection order file before going on the bench for protection order hearings. It certainly does not hurt the respondent's case for the judge to hear from both sides before going on the bench. Responsive affidavits paint a vastly different picture than if the judge only has the petition to work from.

Tip #10: Be informed about protection orders.
Protection orders are granted pursuant to statute in South Dakota. Look to Chapter 25-10 for domestic abuse protection orders and Chapter 22-19A for stalking protection orders for requirements. Information regarding both domestic abuse and stalking protection orders can also be found on the South Dakota Unified Judicial System website.

Tip #11: Don't be afraid to file.
In addition to the above information, there are also resources available to assist people who are being stalked or abused. Don't be afraid to file a protection order because you are afraid to go to court or cannot afford to hire an attorney. There are resources available who are familiar with protection order procedure and can take protection order cases for low cost or no cost. Consider contacting resources such as these in Rapid City: Working Against Violence, Inc. or Sacred Circle. Consider contacting resources such as these in Sioux Falls: Children's Inn or The Compass Center. Also consider contacting an attorney to assist you.

Friday, August 20, 2010

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."

Friday, August 13, 2010

What is ICWA & why does it matter?

ICWA stands for the Indian Child Welfare Act. It applies to child custody proceedings, including foster care placements, termination of parental rights, pre-adoptive placement, and adoptive placement. 25 USC 1903. In essence, it applies to any and all custody determinations, except those between two parents (such as in a divorce).

The act applies only to an "Indian child," which is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Id. The federal Act was adopted in 1978 to address the "...alarmingly high percentage of Indian families [...] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [...the] alarmingly high percentage of such children [...] placed in non-Indian foster and adoptive homes and institutions." 25 USC 1901(4).

If child custody proceedings involve an Indian child, or there is any indication that the child might meet either of the definitions of an Indian child, the rather extensive and detailed provisions of ICWA must be followed. This is key, because failure to follow certain provisions of ICWA may lead to reversal. In at least one United States Supreme Court case, Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30 (1989), reversal meant that termination of parental rights and an adoption were in essence undone. Therefore, even if social workers, attorneys, parents, caregivers, the court, and other stakeholders are unfamiliar with the exact requirements of ICWA, it is essential that they at a minimum be able to recognize when and if ICWA applies.

Who I Am.

As I am new to blogging, and as my blog is based on my views of the law in South Dakota and the Black Hills, I thought that I ought to begin by telling my readers a bit about myself. Here goes.

I was born and raised in the Black Hills of South Dakota, with my parents Larry and Janel, my sister Tara, and a number of pets over the years. I attended high school and worked in Rapid City, SD until I left for college. I attended The University of South Dakota in Vermillion where I received a Bachelor of Arts degree in political science, a Master of Public Administration degree, and a Juris Doctor degree. After graduation from the U., I spent a year as a law clerk for the Second Judicial Circuit Courts in Sioux Falls, SD. I was admitted to the State Bar of South Dakota in January 2010.

I returned to the Black Hills and opened my solo law practice in Rapid City, SD in August 2010. My office is located in the Historic Feigel House in Rapid City. I practice law in the following areas: family law, simple wills and estates, criminal law, quasi criminal law, and landlord-tenant law. In my assessment, all of these areas of law deal in some capacity with the home--home life, the physical home, preparation for our home in heaven. This is why I chose the quotation from Charles Parkhurst to describe my blog: "Home interprets heaven. Home is heaven for beginners." My practice is devoted to helping people interpret heaven through the betterment of their homes.

I hope you enjoy my posts and find useful information in my blog!

Happy reading,


Tuesday, August 10, 2010

Areas of Practice

Juvenile Law:
- Guardian ad Litem
- Juvenile Delinquency
- Abuse and Neglect

Criminal Defense:
- Misdemeanor
- Felony

Family Law:
- Adoption
- Name Change
- Guardianship
- Paternity
- Child Support
- Child Custody
- Divorce

Small Estate Planning:
- Wills
- Powers of Attorney
- Living Wills
- Child Care Powers of Attorney

- Expungement (South Dakota)
- Exceptional Pardon (South Dakota)
- Motion to Set Aside Conviction (Nebraska)
- Involuntary Commitment
- Mental Hold
- Habeas Corpus
- Protection Order

Attorney Profile

Tana Fye is a sole practitioner who is licensed in Nebraska and South Dakota.  She first opened her law practice in Rapid City, South Dakota after one year as a law clerk with the Second Judicial Circuit Courts in Sioux Falls, South Dakota, where she worked under ten judges and a staff attorney performing legal research and drafting decisions and opinions.  She recently relocated to Holdrege, Nebraska and reopened her law practice there.  

Tana received her Juris Doctor degree from The University of South Dakota in 2009.  While attending law school, Tana was a member of the Client Counseling & Negotiation/Alternative Dispute Resolution Board, where she competed in national arbitration and negotiation competitions, as well as won an intra-school negotiation competition.  Tana also served as secretary/treasurer for her law school class, and was involved in Delta Theta Phi, a legal honor society.  Tana earned high grades in the following courses while in law school: Remedies, Federal Jurisdiction, Conflict of Laws, Immigration Law, and Contracts I & II.  

Tana also received a Master of Public Administration degree from The University of South Dakota in 2009.  Tana earned a 4.0 grade point average in her master's program, and was awarded membership in the Pi Alpha Alpha Honor Society.  While in the master's program, Tana performed research and wrote her professional report on Qualified Expert Witnesses Under the Indian Child Welfare Act.  

Tana received her Bachelor of Arts degree in Political Science from The University of South Dakota in 2006. While an undergraduate, Tana was in the Honors Program and graduated as a University Scholar, was on the Dean's List and graduated Cum Laude, served in several leadership positions in the Student Government Association, was Involved in her sorority--Alpha Xi Delta, and performed in the University Orchestra and Chamber Orchestra.  She also received several scholarships and awards from the Farber Center, the Political Science Department, Music Department, and the University.  Tana wrote her Honors Thesis on the topic of Gender Bias in the Eight Circuit Courts.  

Tana is from the Black Hills of South Dakota, but now lives on the prairie in Holdrege, Nebraska.  She enjoys playing the cello, drag racing with her family, reading, travelling, and spending time with her fiance.  

Contact Information

Law Offices of Tana M. Fye
701 Fourth Avenue, Suite 11
Holdrege, NE 68949
Licensed in NE and SD

Blog on Nebraska legal issues:
Blog on South Dakota legal issues: