The latest big legal story has been the fiasco with Wal-Mart and its attempt to seek a share of a former employee’s personal injury settlement. This is actually not an uncommon occurrence.

The story underlying this tragedy is heart-wrenching. A mother, Deborah Shank, was crushed in her car by a tractor trailer. She survived the wreck, but was left brain-damaged and permanently disabled. The financial blow from injuries overwhelmed her family and her husband divorced her, so that she would qualify for insurance through Medicaid.

The family hired an attorney to sue the trucking company of the driver of the rig that had destroyed Ms. Shank’s life. They received a settlement of $1 million dollars and, after paying for expenses, the attorney’s fees, and outstanding medical bills, the Shank family’s share of the settlement was reduced to $417,000.00. Thankfully, her medical bills of $470,000.00 were paid by Ms. Shank’s medical insurance coverage through Wal-Mart.

Sadly, this was not the end of the story. Wal-Mart sued Ms. Shank for the medical bills it had paid, under the terms of a clause in Ms. Shank’s health insurance policy entitling it do so. Given that the bills paid exceeded what was left of the settlement, Ms. Shank and her family would end up with nothing from the settlement.

This is a common problem in personal injury cases; it is called “subrogation.� The health insurance policy has a clause permitting the insurance company to seek recovery for the health insurance bills paid, if the insured receives a settlement from a lawsuit. This right of subrogation is strongest, as in the case of Wal-Mart, where the insurance policy is “self-insured,� meaning that Wal-Mart actually pays all of the bills, as opposed to paying premiums to a health insurance company that pays them.

I suspect that Ms. Shank’s personal injury attorney may have committed a few errors. First, the settlement could have specifically allocated all of the settlement, in a case with such serious injuries, to compensation for “pain and suffering.� This would have, in theory, cut off Wal-Mart’s subrogation claim, as none of the settlement actually would have compensated Ms. Shank for her medical bills.
Second, her attorney could have acknowledged the subrogation claim and attempted to negotiate a side-settlement with Wal-Mart. Why would Wal-Mart be willing to do so? The key is that Wal-Mart could not directly sue the trucking company for Ms. Shank’s medical bills; its rights “piggy-backed� on Ms. Shank’s claim, which she had to pursue for Wal-Mart to be able to get a dime. Hence, the attorney would have threatened to seek no compensation, in exchange for a lowered subrogation claim.

Georgia has something called a “make whole� doctrine. In many cases, it protects an injured party from a subrogation claim filed by a health insurer. This doctrine says that a third party, like an insurance company, cannot seek subrogation compensation unless the insured is “made whole� by a settlement or verdict. Unfortunately, though, this doctrine probably does not apply to a self-insured policy like the one offered by Wal-Mart.

Hopefully, the retail giant will see the folly of fully enforcing its rights. However, Wal-Mart is well-within its rights to seek a share of the Shanks’ settlement. This result may be legal, but this is not justice. Something to think about the next time you shop there.

Oral arguments regarding the 2nd Amendment have been completed in the United States Supreme Court. Many will try to glean, by the questions and statements made at oral arguments, which Justices are leaning in which direction.

Such “tea-leaf� reading is not merely idle speculation. By the time of oral arguments, a controversy has been well-vetted. Most, but not all, of the Court’s power to shape law, comes from its power of review. Justices usually wait for the lower courts to work some of the kinks out of arguments and for a case to be ripe for a particular result. Particularly contentious legal issues are also the subject of much scholarly academic debate, outside of the legal system. I guess you could say a lot of the “heavy work� is done by others, before the Court finally steps in.

The Court has to be convinced to take a case through a petition process. Typically, an issue is rejected many times, before a “lucky� litigant finally convinces the Court to tackle the case; there is no requirement the Court to take on a particular case, other than the whims of the Justices. By tradition, at least four (4) Justices (one less than to decide a case) have to vote to accept a petition, and even after taking a case, it may be declined at any time before a final decision is made.
The concept of the 2nd Amendment’s meaning has been batting its way around courts, legislatures, and law schools for centuries. Today, it is one of those rare constitutional provisions which has never really been threshed out. In effect, over 200 hundred years after its adoption, a 21st Century Supreme Court will be deciding the original meaning of constitutional text. Fascinating!

To decide this case, the Court will reflect on ancient English Law, colonial laws, recorded sessions from the Constitutional Congress (including rejected proposals), and writings of the Founding Founders from the Federalist papers. Some justices will take these authorities as original imperatives; others will attempt to apply the theories of the past through a modern context.
Given the political make-up of the current Court, it is likely that some type of individual right will be found in the 2nd Amendment. As a probable minority voice at oral arguments, Justice Breyer expressed some concerns about the legal quagmire this could create.

Is it a right to “own� a gun or is it merely the right to “keep� and “bear� (which are the words of the actual text)? Word choice is very important in how judges interpret laws.

If there is an individual right, how “fundamental� a right? A fundamental right, such as free speech or religion, can only be abridged by governments by passing a very high test of “strict scrutiny� (which almost never happens), as opposed to a lesser “rational basis� test, which would itself result in almost a case-by-case process of decision. If the former test is used, most of our gun laws, even those universally accepted, would fail; if the latter is used, only especially egregious ones would fail, but the court system would be flooded with cases.

Does the 2nd Amendment apply to States or only the Federal Government? During the mid-1900s, there was an intense debate on the Court about which constitutional rights also applied to States. Because of the text of the 2nd Amendment, this debate could be revived.

These are all some of the prickly details to be considered. Later this summer, we can see how the Court addresses them. Watch for it!

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.� These twenty-seven words comprising our 2nd Amendment in the Bill of Rights have confounded legal scholars for centuries. Does this mean that individual right to own and possess a gun or does it mean that we have the right to possess a gun as a member of a militia? On Tuesday, March 18th, the United States Supreme Court found itself squarely facing this dilemma.

Over the years, the Supreme Court has studiously avoided this question at just about every opportunity. The last time it side-stepped making a definitive decision was in 1939 in United States v. Miller. In this case, the Supreme Court was asked to consider a Federal Law making it illegal to transport a sawed-off shotgun across state lines. This was deemed not to infringe on a personal right to bear arms, since there was no correlation between a sawed-off shotgun and a state militia. In reaching this decision, the Court went through a rather lengthy historical analysis of a citizen-militia, as opposed to the modern development of a professional standing army.

Over the next seventy (70) years, Congress passed a number of more restrictive firearms laws. As Congress enacted these restrictions, the Court generally upheld the authority to pass these laws. When the Court struck down the law, it relied on grounds other than the 2nd Amendment to do so. For instance, in 1995, the Court held that Congress exceeded its authority when it enacted a law prohibiting the possession of a firearm on school grounds, rather than using the 2nd Amendment to invalidate this statute. Two (2) years later, the Supreme Court had an opportunity to consider the Brady law, which set a national waiting period for firearm purchase, and struck it down as “over-reaching�, even though Justice Scalia’s majority opinion went through a lengthy analysis of the 2nd Amendment’s potential to limit Federal authority to regulate firearms.

In District of Columbia v. Heller, the time has come to tangle directly with this issue. In 1976, Washington, D.C. passed a law strictly regulating the right of its citizens to possess firearms, including unregistered firearms. The Supreme Court accepted this case to specifically decide “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.� In addition to the parties writing briefs, the United States filed an official brief in support of the law – oddly, the President’s Office, in conjunction with a majority of Congress, filed a brief opposing its constitutionality.

This case is so contentious that over 70 briefs have been filed and the Court took the unusual step of granting more than hour for argument this past Tuesday. Parties asking for the law to be upheld include most major law enforcement organizations, including a national prosecuting attorney’s office, the City of Chicago (which has its own ban), and the “usual� pro-gun control organizations. Several states, the NRA, and an extraordinary number of other gun-rights organizations filed the majority of briefs in opposition to the law.

The ramifications of this ruling could be earth-shattering. In theory, if the 2nd Amendment prohibits the regulation of firearms, even crimes prohibiting convicted felons from possessing a firearm could be invalidated. It is an important enough issue that we will revisit it next week.

Imagine that you are running a business and you have two different groups claiming that their rights are infringed. Imagine further that one of those groups bases its claim on its religion and that Federal regulation prohibits nondiscriminatory policies. This is exactly the prickly position in which Harvard University finds itself.

Educational institutions receiving Federal funding must follow special rules. There are statutes and regulations governing how these schools treat different groups. Most schools of higher learning must follow these rules because Federal dollars are so ubiquitous; think of all the student loan money used to pay for tuition! Thus, it is almost impossible to avoid government prohibitions and restrictions.

Harvard is in a pickle because a small group of Muslim women feel uncomfortable exercising in a co-educational environment. As you may be aware, certain Muslim women feel that it is a violation of their religious tenets to bare any of their skin in public to men to whom they are not married. Thus, these women will wear a full-body “burqa,� with headgear in public. In some extremely strict cultures, even the face is required to be fully covered with a veil covering. Obviously, some Muslim women cannot comfortably exercise around men.

If these women were being actively discriminated against, such as not being permitted to wear religious garb at the gym, the problem would be simple. Such a policy is discriminatory and would have to be changed. Fortunately, or unfortunately, that is not the situation.

The problem is that potential solutions alienate different groups. If nothing is done to accommodate the religious practices of these women, they can claim they are being discriminated against. If the women are permitted exclusive use of the gym, Harvard men can claim they are discriminated against; men are entitled to have access to the gym, as well as these Muslim women.

In theory, this situation is not unique to a college. There are certainly women who prefer to exercise in a women-only environment, although not necessarily because of religion. They pay to join a private gym that caters just to women. There is nothing illegal about this. A “private� entity (as opposed to a “public� one) can legally discriminate on gender, except in employment decisions; this is why Augusta National can remain a male-only Club. A private entity cannot, however, discriminate based on race, even at a golf course. Again, Harvard accepts federal monies, which makes the school subject to federal law.

The solution that Harvard came up with is to have certain limited hours where the gym is open only to women. This compromise may prevent a legal fight, as it might be considered reasonable and non-discriminatory.

We live in a pluralistic society; we have laws and rules to ensure that minorities can live their lives without having the majority impose its will on them. Sometimes we have some interesting situations - like the one Harvard is facing. Harvard has chosen a middle ground to resolve its problem. Is this the best decision? Will it work? Maybe, maybe not. Either way, it’s an attempt to celebrate America’s open and free society.

Attorneys in Georgia must acquire approximately a week’s worth of continuing education each year. Two of those hours have to be in “professionalism� and “ethics.� While we all see this training as necessary, the lectures are usually either entertaining “war� stories, and are often either not very practical or extremely boring. Every now and then, however, there is a little shaft of brilliance.

I was privileged to be a witness to just one such instance, in a recent professionalism lecture by Justice Robert Benham, of the Georgia Supreme Court. Justice Benham has been an attorney for more than thirty years, having served as a Supreme Court Justice for nearly twenty of those years. He related to a group of attorneys a few of his personal experiences to illustrate the role of lawyers, the law, and the public. In print, I cannot do justice to his eloquence, but I thought I would share some of his musings.

Justice Benham started practicing law in the early 1970s up in the Georgia mountains. He described appearing in front of the local judge and having a rough experience. Later, the judge’s assistant gave Justice Benham a piece of her mind, demanding to know why he had been so argumentative with her judge. She revealed that the generous anonymous donation that permitted Justice Benham to afford law school came from none other than her judge. Ouch.

Another instance, Justice Benham was traveling to a local municipality to represent a client on a traffic ticket, where “court� was held by the Mayor in a trailer. Justice Benham carried with him a tape recorder to record the proceedings in case something needed to be appealed. The Mayor pulled him aside and they worked things out without the necessity of a messy trial and a tape recorder.

Finally, Justice Benham told of the court clerk in his hometown handing him the keys to the court house. This was done with every lawyer in the county. The clerk told Justice Benham that this was a reminder that the courthouse belonged to the local citizens and that they ought to have a right to go into the courthouse with their attorney, anytime, to see the courtroom and learn the mechanics of the judicial process.

Lawyers are trained to fight. The genesis of our profession reflects back to a more barbaric time, when armed combat was used to resolve disputes. Lawyers are the offspring of this medieval system of dispute resolution. Because of the role we have in society, lawyers find themselves constantly being dragged into an adversarial, combative, nasty business.

Justice Benham’s point is that lawyers should not celebrate the battle. Our true calling is to help our clients resolve disputes. We have ties to our judges and our fellow attorneys that will survive a particular case and we often walk a fine line. We bring to the table our experience, knowledge of the law, and, hopefully, some dispassionate detachment from our clients’ emotional entanglements. Sometimes, this makes it difficult for our clients to listen to us; they think we are not being tough enough. It might help our clients to remember our goal is to achieve resolution, not alienation.

Some might consider Justice Benham’s notion quaint. In an increasingly complicated and busy world, the Bar is not as fraternal as it once was. It is hard to slough off our combat persona; yet, Justice Benham is right: it should still be the goal of every attorney to celebrate the cause of justice, not the cause of battle.

A client of mine works as a Federal Express driver. When I noticed a legal/financial story on FedEx at MSNMoney.com, I took notice. The article, written by Jeff Schnepper, concerned the legal relationship between Federal Express and its drivers.

If a business pays anyone more than $600.00 in a tax calendar year, those payments must be reported to the IRS. The employer either has to claim the person as an “employee,� resulting in a W-2 being issued at the end of the tax year, or treating this person as an “independent contractor,� resulting in a 1009 being issued at the end of the tax year. Either way, the income and relationship is reported to the IRS for tax purposes to ensure that all income and payroll taxes are paid.

When we think about taxes, most of our thoughts gravitate to income taxes, corporate taxes, or property taxes, but payroll taxes are paid by everyone who works. These are the Social Security and Medicare taxes we have withheld in our paychecks, for which the “full� tax rate is 15.3% of income. Employers must match the tax paying 7.65% (or one-half) of these payroll taxes; the self-employed pay the entire payroll tax (15.3%). This means that above and beyond your actual salary, your company pays its share of matching payroll taxes to the IRS.

By trying to characterize its relationship with its drivers as “independent contractors,� FedEx is trying to shift responsibility for paying the employer’s share of payroll takes onto the backs of the drivers. To quote from the article framing the legal issue, “What got the IRS and FedEx into a tussle was the package company’s assertion that drivers were contractors who operate their delivery routes as independent businesses, even though the drivers use FedEx equipment, wear FedEx uniforms and work under explicit FedEx rules.� This correctly describes FedEx’s business model – drivers are required to purchase FedEx vans and “own� their routes, yet otherwise they “look� like an employee of FedEx.

While the IRS is loosening some of the strictures in the code, FedEx is probably on the losing end of this argument. To qualify as an independent contractor, the employee must have almost complete discretion on how to carry out their jobs and provide all of the necessities to carry out their responsibilities. For instance, an independent contractor hired to clean a house may bring most or all of the cleaning equipment to the house, as opposed to having it provided, and will make all decisions on how to clean and what to wear. On the other hand, if this person was given a uniform or dress code and was expected to work every Tuesday from 9-4, this is more of an employer-employee relationship. This is where you have heard of “nanny-gate�-type of political problems, i.e., regular household help (nannies or housekeepers) for whom no payroll or income taxes are paid.

As Mr. Schnepper points out in the MSNMoney.com article, the ramifications of defining FedEx drivers as employees versus independent contractors affects a wide swath of employment relationships. This case is bringing industry-wide practices to the spotlight, which will probably change the way some transport companies do business, but it may very well affect you down the road. Keep your eye on this case and make sure to consider both Federal and State guidelines when determining a worker’s status.

Dear Jim, I have some relatives living in Savannah. They have been telling me about the Port Wentworth sugar refinery fire and how devastating it has been for the local community. They have also told me that lawyers, even from out-of-state, are advertising about suing. Why can’t a community mourn without having attorneys acting like this?

Dear Readers, Attorneys struggle mightily with this very issue. What does the profession collectively do to stop such callousness? What do we, as individual attorneys, do in structuring our marketing practices?

Your observation shines a light on the nebulous zone between ethics and constitutionally-protected free speech. In past columns, I have discussed free speech issues, observing how this right is integral to our success as a country.

We are currently in the midst of a presidential election where the nexus between controlling how money affects our government and speech can be at odds with each other. Many are very unhappy with attempts to control how money is raised and spent in Federal elections, and sneer of the so-called “McCain-Feingold� bill to control the flow of money in presidential elections. Frankly, most of these attempts have failed to accomplish much of anything because the United States Supreme Court, since considering post-Watergate finance campaign laws, has pretty consistently equated money with speech and made it difficult to regulate the financing of political campaigns and advertising.

This is the same problem we in the legal profession face, e.g., money is speech. For example, the State of Florida Bar Association has adopted professional rules requiring all television advertisements to be screened by the State Bar. That rule is now being challenged in Court and I predict it will be struck down as unconstitutional censoring of free speech.

Similarly, judicial raises, which should be about the law and judicial temperament, are no longer quite so “high-minded.� Judicial ethical rules circumscribing what candidates can say in elections have been obliterated by the right to free speech.

Still, there are a fairly complicated web of rules governing how attorneys may advertise. The overriding principal is that the public is entitled to be informed of its legal rights through advertisements. However, lawyers may not “make any false, fraudulent, deceptive, or misleading communication about the lawyer or the lawyer’s services.� Also, any direct mailing to a prospective client, such as a direct mail campaign, must clearly label the media as “advertisement.�

Finally, lawyers are prohibited from directly contacting victims of an accident or natural disaster for thirty (30) days. This last rule is designed to protect individual solicitation, but it does not encompass television or radio appeals. Thus, if I am driving by a car wreck, I am prohibited from stopping and handing out my business card. Sadly, there are many unscrupulous lawyers who have surrogates doing this for them.

As a lawyer, I recognize that marketing is as important to me as it is to the local restaurant or retail outlet. News of my reputation (good or bad) only reaches so many people. Yet, I have had many clients who originally hired“TV attorneys� and found them lacking. Unfortunately, I really don’t have any easy response to your observation. There are tasteless ads and then there are lawyers who use various media, like TV, to reach a wider audience. All I can do is apologize for the base activities of my brethren in Port Wentworth who failed to recognize the line they clearly crossed.

Dear Mr. Rockefeller, Last year, my grandson’s mother was killed in a car wreck. What can I do? What are my rights?

Dear Reader, First, my condolences. Your family has suffered a tragic loss. I am sure, even now, the pain is still there.

Sometimes, being an attorney can be uncomfortable. In order to help our clients secure their rights, we have to provide seemingly callous advice. There’s no sensitive way to advise a client over something as inhuman as recovering money from the death of a loved one.

There are four (4) factors involved in a wrongful death action: who caused the death; who has the right to sue; any pain and suffering associated with the death (and any debts the estate might have); and, determining the “value� of the loved one’s life.

Liability can sometimes actually be a very difficult hurdle to clear, since the deceased is not available to testify about what happened. Of course, if the deceased is the passenger in an automobile wreck, liability is less of an issue, since a passenger can hardly be held responsible for his or her own death. In other circumstances, proving fault may be much more difficult.

The right to sue is narrowly described by statute. A living spouse sues for the value of life (wrongful death); if there is no spouse, children (even if minors) have the right to sue. If there is no spouse or children, a surviving parent has the right to sue, even if the deceased was an adult. All other typical family relations, including siblings, grandparents and grandchildren, are excluded from suing over the death.

If someone has the right to sue for the value of life, regardless of who is named as the plaintiff, the spouse and children share equally in the result or the surviving parents share equally, if there is no spouse or child. This means that whomever sues will be doing so on behalf of all other persons qualified under the wrongful death statute.

Either parallel to, or as the sole claim, a wrongful death action, the estate of the deceased has the right to sue for the deceased’s pain and suffering prior to death. The estate has a broader pool of potential recipients to any recovery (which could include siblings or grandchildren, among others), governed by normal estate issues. However, this claim is limited to just the pain and suffering and the estate would have to pay the deceased’s debts – which could be substantial, if there hospital bills. Thus, the estate may or may not sue, based on the extent of any provable pain and suffering, any debts, and whether or not there is someone who can sue for wrongful death.

If there is a suit for wrongful death, the length and quality of a life terminated early determines the value of the claim. Obviously, the younger the deceased and the better the “quality of life,� the greater the value. An exception is in a medical malpractice claim, where recovery is currently limited to a possible maximum of no more than $700,000.00.

In your case, if your daughter had no surviving spouse, you can sue on behalf of your grandson and any other children. You can also ask to be appointed the executor of the estate, which would protect your own rights to sue for pain and suffering. Again, I am sorry for your loss, but make sure that you know your rights and sue correctly and in time to recover, as there are certain applicable deadlines.

Dear Readers, Recently, I noticed reports about white supremacists marching in Jena, Alabama to support the white victim of the racially motivated “beat-down.� The local community did not want these outsiders using its pain as a soapbox for “white power,� yet it honored the 1st Amendment’s almost inviolable right to congregate and protest. In reading this sad story, my thoughts turned to an event from my boyhood: Skokie and the Nazis.

Skokie, Illinois is a middle class/upper-middle class town of approximately 65,000 people just Northwest of Chicago. Back in the mid-1970s, as today, Skokie had a strong Jewish presence. At the time, many of its citizens, maybe as much as 20% of its population, were either Holocaust survivors or direct relatives of those who suffered from the horrors of Hitler.

Frank Collin hailed from the Southside of Chicago, pockets of which have had some ugly racist histories. He was a small-minded, meglomanical man who fancied himself some sort of post-modern Hitler, claiming to be a leader of the Nationalist Socialist Party (Nazi). As I recall, his claims were delusional and, after his moment of infamy from 1976to 1978, he became just a hateful memory.

In the fall of 1976, Collin applied for a permit to march in full blackshirt regalia in a Skokie park. Skokie, and much of Chicago, recoiled in angry disbelief. Skokie leaders quickly passed an ordinance requiring, among other things, a bond be posted against potential damages from the march. Litigation over the constitutionality of this ordinance, briefly reached the United States Supreme Court in June of 1977. The Court ordered the march be permitted to go forward, pending the resolution of this litigation, given the singular importance of our 1st Amendment rights.

In constitutional law, there is a distinction between governmental interference with 1st Amendment rights as they unfold, if you will, and a “prior restraint� on the content of 1st Amendment rights. The latter are viewed with great skepticism requiring the highest degree of proof that governmental intervention is appropriate, as opposed to merely rational limits on time, place, and manner. Thus, there are regulations on how close to abortion clinics pro-life supporters may congregate, they cannot be absolutely banned.

In the end, Collin’s group marched in a Southside Chicago park, where the march was not quite as controversial, and Skokie citizens were spared something for which the word “horrific� does not do justice. Yet, Collin (who was Jewish, by the way) had won the right to take his message of hate directly to Skokie. The ACLU, which defended his right to march, lost tens of thousands of members for doing so and a movie starring Danny Kaye was made of the whole saga.

The citizens of Skokie were embittered by the whole experience. They could not comprehend how this country could allow, in complicity, such a petty and callous man to lance the wounds left by Hitler’s genocidal evils. I am sure the citizens of Jena share pale echoes of this resentment. Yet, their pain is a tribute to our Country’s greatest right, the first right, to publicly gather and protest. It is one of the principal distinctions between our republic and petty dictatorships or oppressive oligarchies.

Thus, the 1st Amendment is a shining promise that our rule of law triumphs over emotion and points the way to freedom, as opposed to the slippery slope of censorship. Ultimately, we may not like what the 1st Amendment sometimes permits, but the alternative would diminish our freedom.

Dear Readers, Last week, we started exploring custody issues for a military Husband seeking a possible divorce from his “cheating� Wife. This week, we continue by examining “primary physical custody� issues.

There is really no magic formula distinguishing a shared custody result from awarding primary custody to one parent. A parent clearly established as the “primary caretaker� would certainly be favored for an award of primary custody. Still, this decision tends to hinge on individual judicial philosophy; which may vary from case to case. In other words, the same judge may award shared custody in one case and not another, with no apparent logical reason for the differing result.

The judge does have one guiding principle – Do what is in the “best interests� of the minor children. To discern this, a judge will consider information presented by the parties from a variety of sources and, if the children are old enough, even from talking privately to the children in chambers. However, at the initial temporary hearing (roughly 4 to 6 weeks after filing the divorce complaint), each party is limited to one witness (other than the party) and an unlimited number of witness affidavits (sworn statements). However, it is unwise to rely too heavily on affidavits as most judges treat them with great skepticism.

As to our Military Reader, in presenting your custody case, you can certainly introduce general character-like testimony about what a good parent you are and how much your children love you; and, of course, the opposite about your Wife. From what I have seen, though, this sort of testimony is not particularly persuasive. Similarly, your Wife straying from you, and/or bad relations between the two of you, also may not be all that compelling in determining what is best for your children. Unfortunately, the mere fact that you are in the military, with a potentially unstable future, will work against you – most judges are reluctant to award primary physical custody to an active-duty parent.

Despite this “prejudice� against you, the Judge will be interested in getting at the “truth� of who seems to have bonded more with the children. In doing so, the Judge will want to hear about facts like who gets the children ready for school in the morning, off the bus in the afternoon, comforts them when they are hurt, and helps them with their homework. While it will be hard to prove this by anything other than your own testimony, you may find support from non-family caregivers (teachers, coaches, religious figures, doctors) to confirm the accuracy of your self-description.

Finally, you should consider witness testimony (including your own) about specific incidents or events. Here, you would concentrate on instances starkly illustrating either you are the better parent (showing that you are your children’s rock for guidance, love and affection) or your Wife is not, from your Wife’s inappropriate conduct in front of the children (such as drunkness, adultery, yelling at you, and the like), to poor discipline behavior, even bordering on child abuse.

As noted above, working against the military parent is the inherent instability of being subject to a TDY or base change. However, military marriages typically are not prone to contrasting parenting skills. Military parents tend to treasure their time with their children and be very pro-family, making them excellent parents. Again, I do not have enough information to offer you any firm opinions. Hopefully, though, I have given you some helpful guidance. All that is left is to wish you, and most importantly, your children, the absolute best of luck.