Monday, April 27, 2015

Child custody when a child is taken out of state

Recently, I had a chance to chat with an individual who had questions about her son. In brief, she requested:
My son and his father moved from Virginia to Nebraska in June 2014. We were never married and we both lived in Virginia when my son was born. My son's dad got awarded full custody in 2008. I have visitation every other weekend. Since they moved to Nebraska, I haven't seen my son in 10 months. I'm not a pedophile but they're treating me as if I've done something wrong. What can I do?

Generally, under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), the court that last had jurisdiction over the case, retains jurisdiction unless challenged. In this case, it appears that the last court that had control was in VA. Ergo, you could file in VA for a "show cause" hearing as to why your ex-partner is not honoring the Court Order that requires him to provide visitation to you.

UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act
Covers a variety of topics, but three points are good ones to always remember with the UCCJEA:
  1. The court that entered the last order has jurisdiction and must release it for any other court to have control.
  2. For an eligible court to "take control", a the child and one parent must have lived in the new jurisdiction for at least six months.
  3. Child custody matters are NOT controlled by the UCCJEA.
However, be advised that under the UCCJEA, your ex-partner can now file in Nebraska. The rule holds that once a the child, and one parent, have lived in a new jurisdiction for at least six months, that new jurisdiction may take control of the case. I would expect your ex-partner to file in Nebraska if you file in VA, and seek to have the case transferred there. Likely, he would succeed.

Fighting UCCJEA cases is neither cheap, nor easy. In the end, the judges from both jurisdictions will have a chat (they must, by statute), and determine what court will retain the case. This means that you should expect to retain an attorney in each jurisdiction if your ex really does file to move the case to Nebraska.

Do you have a question concerning family law? Email us or call 1-800-579-9864. We provide free initial consultations, and a friendly shoulder to lean on!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Sunday, April 26, 2015

How to Sell Shares as a Private Business - Rule 504 of the SEC

So you own a small business, and are contemplating obtaining investors? Good news -- It's possible! Bad news, you better know what the heck you're doing.

Care is required here. As a small company contemplating a Rule 504 filing under Regulation D of Security and Exchange Commission, you need to be sure you understand the rules. Generally, you want to be a corporation and not a limited liability company. No hard and fast rule, however, LLC's don't generally have shares, and usually the operating agreement reads more like a partnership than a corporation. Make sure you have a seasoned attorney review the LLC agreement BEFORE soliciting any investors. LLC vs. Corp. aside, let's take a moment to understand what Rule 504 is all about.

At a minimum, Rule 504 allows you to sell shares of your company to qualified investors (considered a "public offering") without having to file notices without the requirement of formal registration and regulation by the SEC. You are, however, still required to complete Form D (hence the name of the action: Rule 504 under Reg D) which provides certain minimal data to about the company. The SEC then enters that information into an online database accessible by any individual or organization that might want to reference or research the company. Although you are not required to file the Form D annually, each time you make a sale under a 504 offering, you SHOULD update the Form D to ensure the SEC information is current. If the information in the online database is off, you risk a fraud charge even under Rule 504. Be careful.

You qualify for a 504 filing if your company has has sold or plans to sell up $1 million in shares in a given 12 month period (hence the annual comment above), and your company is established (defined as having a clearly definable business plan, and some footprint in the market). Generally, shares sold under a 504 plan are restricted -- meaning, they cannot be resold on the open market without meeting further requirements. Those requirements are a bit complex, and generally relate to state regulations -- contact us if you need more information on that.

To find out more about 504 ops, visit the SEC website devoted to the same. It's a tad complex, but it gives a good background. See: SEC Rules for 504 filings.

If you need additional help with SEC matters, or business transactions, give me a ring! I'll be glad to discuss your individual situation, and see what steps make the most sense. Hanover Law: 703-402-2723 or SeanHanover@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Thursday, April 16, 2015

Motions in Limine -- an example

Although there are multiple uses for motions in limine, the most basic form is to (1) exclude testimony from certain witnesses, and (2) to exclude evidence on the grounds of (a) undue prejudice, (b) lacks authenticity, (c) lacks foundations, (d) lacks relevance, or (c) is cumulative and therefore unnecessary. Occasionally, a proponent will file a motion in limine as a backhanded form of summary judgment; asking the court to deny a party the right to present an argument or facts based on the law stipulating such argument cannot be had. However, while perfectly permissible, the Courts usually frown on waiting until just before trial to make a summary argument, and are much more inclined to find a question of fact requiring the trier to hear.

I've included a recent filing in a multi-million dollar shareholder/fiduciary claim case. In this instance, note the abridged nature of the summary, the inclusion of a chart characterizing the over 400 pages of evidence, and the argument against their witness. The rule that governs motions in limine is Federal Rules of Civil Procedure 402 and 403, which gives the Court jurisdiction to include (402) and exclude (403) any evidence. Remember -- a motion in limine is an argument based on the rules of evidence. Most of the time, your motion will be heard at the pre-trial conference, but must be filed according to the scheduling order.

One last note -- be sure to provide an alternative remedy of "caution". This lays the foundation for attacking and seeking sanctions if your opponent engages in improper evidence submission during trial, after having been cautioned not to do so via your motion in limine.



Do you have a question about Court procedure, motions in limine, or pre-trial strategy? Call us! WE CAN HELP! 703-402-2723 or 1-800-579-8864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Wednesday, April 15, 2015

Difference between JOINT filing and CONSENT filing

As a practitioner in both Federal and State jurisdictions, I am often consulted on matters that cross between both types of Courts. A recent question posted to the American Immigration Lawyers Association (AILA) is a good example. In this case, a practitioner new to immigration law (Federal) was asking the difference between a joint filing with the opposing counsel, and a consent filing with the DHS attorney. Her question, in part, read:

I used to file "consent" motions in state criminal court when I had consulted with the prosecutor and they agreed on whatever I was asking for. I didn't have them [prosecutors] actually sign the motion...

I've been looking at a sample "joint" motion to admin close an immigration case, and there's a space for the DHS attorney to sign. Is that just a best option, or is it actually necessary for me to get OCC's (Office of Chief Counsel -- immigration equivalent of the "district attorney" for a particular court) signature on a joint motion?

Does it make a difference if I title my motion "consent" vs. "joint"?

A discussion on JOINT MOTIONS vs. CONSENT MOTIONS:


A consent motion is one that the opposing parties agrees to allow you to file – consent = no opposition. The other party consents to your filing, but takes no position on the matter.

A joint motion is one where you and another party (together) are requesting the Court take some action. A joint motion is much stronger than a consent motion. In a joint motion, all parties are arguing that the Court should grant the requested relief, and the facts alleged are true. The opposition has moved from merely agreeing to allow you to file, to actually arguing for the relief to be granted. To make an argument to the Court, counsel must sign the motion. Hence for a joint filing, all parties filing in joint must sign.

When the petitioner AND the government both file in joint (a joint motion -- in the example above, OCC and the petitioner), the government is actually obligated to argue on behalf of the motion, just as you are obligated to argue on behalf of the motion. The Court is obligated to view the requested relief as beneficial to the government (or other joint filing party) when factoring whether to grant the same, or not.

Oddly, I just had a joint motion for bond redetermination denied by the Superior Court in DC (client had a 3rd DUI and was being held on a show cause for probation violation). That is exceptionally rare, and despite my impassioned plea, and rather luke-warm, tepid support by the government, the judge did her own thing. Just goes to show no matter how strong a joint motion is, the final arbitor is always the judge!(laughing). Those of you who have had favorable plea agreements nixed by the Court are too aware of the odd quirks that a judge can take despite the agreement of all parties on how the case should move forward.

Do you have a procedural question or concern in Federal or State Court? Call us! We can help -- 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Saturday, April 11, 2015

How can a non-profit organization engage in for profit work?

I was recently asked the following question on an online legal website:

I am a member of a Church Vestry in Virginia. The church is a 501(c)(3), and it owns a piece of retail property. If we lease the retail property to generate income, are we subject to an unrelated business income tax or would we fall within the exception for rental income?

This question is best answered by providing the rule-of-thumb regarding IRS tax consideration of non-profit activities: if the activity is designed to generate money that is not re-invested into the business, but rather creates a profit or loss for the owners (or "insiders"), then the organization engaging in the activity risks losing tax exempt status.

In the example above, the tax exempt organization should create a separate corporation apart from the church.

The risk here is that the IRS will determine that the profit you generate from the commercial enterprise represents a "for-profit" engagement designed to benefit the vestry of the church (insiders) -- and thereby revoke the tax exempt status for the entire 501(c)(3) organization. Generally, churches are fairly bullet proof (501(c)(3) organizations can engage in most conduct except most campaigning and legislative lobbying), but commercial real-estate is rarely ever a non-profit mission. As such, the proper recommendation in this instance -- create a separate corporation that handles for-profit aspects of the business, and leave the church and church activities as tax-exempt.

For more information on f 501(c)(3) organizations and permissible activities, see:


Do you have a tax questions? Give us a ring! We've helped small and medium businesses throughout the country overcome tax and management challenges. 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Sunday, March 22, 2015

Expungement and Letter of Good Conduct -- DC Rehabilitation Actions

A client came to our office on Friday, and asked the following question regarding expungement in DC:
I was accused of breaking and entering in Washington, DC in 2006. I pled out to a misdemeanor with no jail time. I long ago completed my probation -- is there something I can do to get this off my record? I heard that DC has a program to remove arrests, and was hoping you could help.

Good news! DC does have such a program. In fact, as far as rehabilitation goes, DC is by far one of, if not the most, liberal jurisdictions in the country. So what should you do to get a conviction off your record?

There are three methods for addressing criminal convictions on your record (this is really jurisdiction independent):
  • Expunge your conviction: Two components to this --
    1. remove public access to the charge, disposition, and court record, and possibly;
    2. remove the arrest and police records from public access.
  • Seek a Pardon: This removes all aspect of your case from the system (both arrest and court records), and erases the event itself.
  • Partial Pardon/Letter of Good Standing (or Rehabilitation): This is a middle-of-the-road approach offered in some jurisdictions that permit the governor or mayor to indicate a convicted individual has rehabilitated. This can be cited when applying to jobs, etc.

Getting an Expungement in DC

In DC, the first determination is whether the convicted offense falls within an "expungeable" group, or is barred from any form of relief. That can be found ins DC Code 16-801 (definitions). The following are excluded from expungement in DC:
(9) "Ineligible misdemeanor" means:
(A) Interpersonal violence as defined in § 16‑1001(6)(B), intimate partner violence as defined in § 16‑1001(7), and intrafamily violence as defined in § 16‑1001(9).

(B) Driving while intoxicated, driving under the influence, and operating while impaired (§ 50‑2201.05);

(C) A misdemeanor offense for which sex offender registration is required pursuant to Chapter 40 of Title 22, whether or not the registration period has expired;

(D) Criminal abuse of a vulnerable adult (§ 22‑936(a));

(E) Interfering with access to a medical facility (§ 22‑1314.02);

(F) Possession of a pistol by a convicted felon (§ 22‑4503(a)(2) [see now § 22‑4503(a)(1)]);

(G) Failure to report child abuse (§ 4‑1321.07);

(H) Refusal or neglect of guardian to provide for child under 14 years of age (§ 22‑1102);

(I) Disorderly conduct (peeping tom) (§ 22‑1321);

(J) Misdemeanor sexual abuse (§ 22‑3006);

(K) Violating the Sex Offender Registration Act (§ 22‑4015);

(L) Violating child labor laws (§§ 32‑201 through 32‑224);

(M) Election/Petition fraud (§ 1‑1001.08);

(N) Public assistance fraud (§§ 4‑218.01 through 4‑218.05);

(O) Trademark counterfeiting (§ 22‑902(b)(1));

(P) Attempted trademark counterfeiting (§§ 22‑1803, 22‑902);

(Q) Fraud in the second degree (§ 22‑3222(b)(2));

(R) Attempted fraud (§§ 22‑1803, 22‑3222);

(S) Credit card fraud (§ 22‑3223(d)(2));

(T) Attempted credit card fraud (§ 22‑1803, 22-223) [§§ 22‑1803, 22‑3223];

(U) Misdemeanor insurance fraud (§ 22‑3225.03a);

(V) Attempted insurance fraud (§§ 22‑1803, 22‑3225.02, 22‑3225.03);

(W) Telephone fraud (§§ 22‑3226.06, 22‑3226.10(3));

(X) Attempted telephone fraud (§§ 22‑1803, 22‑3226.06, 22‑3226.10);

(Y) Identity theft, second degree (§§ 22‑3227.02, 22‑3227.03(b));

(Z) Attempted identify theft (§§ 22‑1803, 22‑3227.02, 22‑3227.03);

(AA) Fraudulent statements or failure to make statements to employee (§ 47‑4104);

(BB) Fraudulent withholding information or failure to supply information to employer (§ 47‑4105);

(CC) Fraud and false statements (§ 47‑4106);

(DD) False statement/dealer certificate (§ 50‑1501.04(a)(3));

(EE) False information/registration (§ 50‑1501.04(a)(3));

(FF) No school bus driver's license (18 DCMR § 1305.1);

(GG) False statement on Department of Motor Vehicles document (18 DCMR § 1104.1);

(HH) No permit - 2nd or greater offense (§ 50‑1401.01(d));

(II) Altered title (18 DCMR § 1104.3);

(JJ) Altered registration (18 DCMR § 1104.4);

(KK) No commercial driver's license (§ 50‑405);

(LL) A violation of building and housing code regulations;

(MM) A violation of the Public Utility Commission regulations; and

(NN) Attempt or conspiracy to commit any of the foregoing offenses (§§ 22‑1803, 22‑1805a).

Generally, all felonies are excluded from expungement.

Once you determine that the conviction can be expunged (i.e. is not in the list above), the following code sections control:

§ 16–802. Sealing of criminal records on grounds of actual innocence.
§ 16–803. Sealing of public criminal records in other cases.
§ 16–803.01. Sealing of arrest records of fugitives from justice.
§ 16–804. Motion to seal.
§ 16–805. Review by Court.
§ 16–806. Availability of sealed records.
§ 16–807. Savings provision.

Distilled, the code stipulates that a defendant must wait 2 years to seal and information related to qualifying misdemeanors/charges (those not on the list above). The petitioner (called a "movant") must wait 5 years from date of conviction for misdemeanors on the list above (called disqualifying convictions), and 10 years from the date of a felony conviction, to petition for sealing the record. There are provisions for early expungement for not-guilty, noll-prosequi, and deferred sentencing agreements. The code relevant code states:
(from DC Code 16-803)

(2) (A) If a period of at least 5 years has elapsed since the completion of the movant's sentence for a disqualifying misdemeanor conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying misdemeanor conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying misdemeanor conviction, except when the case terminated without a conviction as a result of the successful completion of a deferred sentencing agreement.

(B) If a period of at least 10 years has elapsed since the completion of the movant's sentence for a disqualifying felony conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying felony conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying felony conviction, except when the case terminated without conviction as the result of the successful completion of a deferred sentencing agreement.

A letter of good conduct/rehabilitation is also available in DC, regardless of the length of time since serving the last conviction. These are complicated, however, and you should speak to us about the steps to obtain such a letter in DC. Additionally, DC has strict guidelines that protect employers that hire individuals with prior criminal records. This is designed to encourage employers to reintegrate released men and women into the workforce. See DC Council amendments favoring employment of released individuals.

Do you need help handling a criminal conviction? Both post conviction relief and expungement related activity ar best done through an attorney. Contact us at 703-402-2723 or 1-800-579-9864. If you're eligible, we can help!.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Wednesday, March 11, 2015

When the judge becomes a recalcitrant -- how to protect your client

While speaking with several great colleagues on the AILA (American Immigration Lawyers Association) discussion boards, I had a chance to share my experiences working with judges who would not allow testimony in the immigration court context. I was asked how I handled such judges -- specifically regarding asylum matters -- and I thought I would share my answer here:

I have run into this -- even the judge not wanting fact witnesses to testify. Let me explain an example regarding immigration and asylum law. In each instance, though, you need to find the underlying law that supports the right of your client to be heard. When that is lacking -- do not fear! Press on with an equity argument and use the same language. The key is putting your concern on the record, as you will see below.

State for the record that your expert's testimony is critical to the foundation and credibility of your case. Further, state that the judge is obligated to hear all facts that bear on the risk of abuse or harm.

“Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the protected grounds . . . .” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); INA 241(b)(3)(A).

If the judge refuses to hear from the expert (or fact witness), object on the record. Then continue. I have won more than one appeal on this objection. Note, though, you MUST note the purpose of the expert (or fact witness) and then object when the judge does not permit it. Also note that if the judge only allows a cursory examination of the fact witness or expert, then that can also qualify for grounds for appeal if you object on the record.

Examples of how to note your objection on the record:

you must introduce the witness or expert and explain what testimony he/she will provide and why it is critical to your case. If the judge does not give you a chance to do this, state, "Your Honor, may I be heard on this matter?" If the judge still refuses, then you must state: "You Honor, for the record, I must state that your refusal to permit XXX to testify prevents you from having a full and complete picture of Mr. XXXX withholding and asylum petition. I object to this."

If the judge allows you to proffer what the witness or expert will testify (that means make a statement on the record indicating what facts will be discussed), and then refuses to permit the testimony, you must state: "You Honor, I understand your ruling on this matter. However, for the record, I must object as I believe it is not possible to have a full and complete hearing on Mr. XXX withholding and asylum petition without this information."
That's it! You've preserved the record for appeal, and stand a good chance of reversing the holding.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.