As a parent, you worry about your children a lot – more than you’ve ever worried about anything before. You worry if your children are getting enough nutrients in their diets; you worry about their safety while in school; you worry if you are spending enough time with them or working too much.
Surprisingly, over half of all Americans do not have a will in place. With all this worry about your children, parents are ignoring (whether intentionally or innocently) the #1 thing parents should be worried about -- what will happen to your children if you die while they are still young. If you and your spouse (or the children’s other parent) both die, who is going to take care of your children?
In North Carolina, the only way to name a guardian for your children in the event that both parents pass away is to do so in a Last Will and Testament. Some states have different procedures, so if you are new to North Carolina and have another mechanism in place, you should speak with an attorney to ensure that your wishes will be followed. If you do not have a will, and both parents pass away, the State will attempt to locate your relatives and place your children with your relatives. In a lot of cases, this will be okay. Perhaps you want your children to live with your parents. But what if they are elderly? What if more than one family member wants them? A custody battle could ensue. What if the relatives they are placed with live across the country? For many people, a better choice for a guardian might be a close family friend who lives in your neighborhood.
When you name a guardian in a will, the court gives the named guardian a strong presumption that it will not disregard unless there are serious doubts that the named guardian would serve the best interests of the child. With naming a guardian, you can take into consideration many relevant factors, such as the following:
I encourage you to discuss these factors with an attorney who can provide guidance in making this decision. An attorney will also know the correct way to provide for contingencies and successor guardians. Again, in North Carolina, the only way for a healthy parent to name a guardian for your children is to do so in a will. Do not intentionally push this worry to the back of your head and avoid it or put it off. You never know when it could be too late. Naming a guardian is one of the most important things you can do for your children.
 Only 44% of Americans have a will. http://www.gallup.com/poll/191651/majority-not.aspx
 There is a procedure in place for parents who are suffering from a progressive chronic illness or irreversible fatal illness to name a “standby guardian” for their children.
Almost everyone has heard of the phrase “double jeopardy” and knows that it means a criminal defendant may only be tried once for a crime. It he is found not guilty, the government cannot try him again for the same offense.
But did you know that the civil justice system has something like “double jeopardy” and it is even more stringent in civil cases? Two similar principles called res judicata and collateral estoppel will prevent you, as a plaintiff, from suing someone for the same claim more than once or even filing a different claim with the same underlying issue as the first case. Also, you cannot sue someone a second time for a completely new issue if you could have included it in the first lawsuit but did not.
Generally, this means that if you were wronged and you file a lawsuit, and if it is dismissed with prejudice by the Court, you cannot refile the same lawsuit or a lawsuit involving the same underlying facts.
For example, let’s say your neighbor’s dead tree fell onto your property, hitting your car and your pet, killing him. You file a lawsuit seeking compensation for your pet. You believe your insurance company will reimburse you for the car. The court dismisses the lawsuit because it found that the tree falling was an act of God and your neighbor was not negligent. Later, you find out that the neighbor knew the tree was dead and had been advised by a tree expert that it was going to fall within the next month. You believe that your neighbor was negligent. Your insurance company does not reimburse you for your car. You file a lawsuit seeking money to compensate you for damage to your car. More than likely, you will be barred from filing that lawsuit. Even though you are seeking money for different damages and because you have new information that may prove your neighbor was at fault, the court has already made a decision that your neighbor was not negligent. You do not get to relitigate the case.
There are many lessons to be learned. First, you should not rush into a lawsuit. You should wait and file the lawsuit after you’ve gathered as much information as possible because if you learn of new information after the case has been dismissed, you’re out of luck. It is very rare that a court will allow a second lawsuit due to newly discovered evidence. However, also be aware of statutes of limitations (limits on the time you can file the claims – normally, about three years).
Second, you should really consider hiring an attorney. A lot of people try to file lawsuits on their own, especially in small claims court, if the money damages sought are not very high. However, if you attempt to navigate the legal system on your own and are unsuccessful, you will not get a second bite at the apple. An attorney can help you with the fact gathering before filing a lawsuit and with identifying all potential claims to make sure they’re all included with the first lawsuit.
Finally, you should not underestimate your opponent. You may quickly file a lawsuit, thinking it is an open and shut case, there’s no way you’re going to lose, and be completely unprepared when the defendant shows up with an attorney who swiftly and successfully gets the case dismissed. You may be blindsided, and there’s nothing you can do about it if it is dismissed with prejudice. A lot of “pro se” plaintiffs (meaning, without an attorney) do not know to ask the court to dismiss a claim “without prejudice” and with leave to amend the complaint, which would allow them to refile the case.
This blog article serves as a cautionary tale for people who try to navigate the system on their own. A lot of people are successful, but for those who are not, it comes at a price. Not only do they lose that particular case, but they may lose their right to bring additional claims or issues before the court in the future.
If you are currently involved with a dispute and are considering filing a lawsuit, please consult with an attorney before doing so, so that you do not unknowingly waive your right to bring claims in the future.
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