For many parents, the topic of vaccinations is a very personal one. There are strong stances on both sides of the vaccination divide, with some believing that vaccinations should be mandatory, and others believing that the decision to vaccinate should be their own. While the issue most commonly arises between parents and educational institutions, it is becoming more common for it to arise between separated parents. Although California has yet to decide a case involving violation of a court order for vaccinations, a recent Michigan case sheds some light on how California might rule on this issue.
In general, California has strict vaccination laws. California, along with the other 49 states, requires that school-age children be vaccinated against childhood diseases as a condition to attending school and day care programs. While some states do recognize your right to not vaccinate on religious grounds, and others recognize your right to not vaccinate on moral or philosophical grounds, California is not one of those states. The only permitted exemptions in California are for valid medical reasons. According to the National Vaccine Information Center, to qualify under a medical exemption, a parent or guardian must submit a written statement from a licensed physician (M.D. or D.O.) which confirms that the physical condition or medical circumstances of the child is such that the required immunization is not indicated, states which vaccines are being exempted, whether the medical exemption is permanent or temporary, and the expiration date, if the exemption is temporary.
The list of recognized medical exemptions in California is very narrow. You may find it at the National Vaccine Information Center website. It includes Autoimmune Conditions, Hyper immune conditions, Immune cancers, Immune deficiencies, Genetic SNP’s associated with increased vaccine reaction risk, and vaccine reactions. However, the state will not provide an exemption for ADD, behavior issues, psychiatric diseases, Asperger’s, Autism, neurologic diseases, hypertension, heart disease, liver disease, kidney disease, or adult onset diabetes.
Similarly, California’s contempt statutes contemplate strict compliance with a court order. Under California Civil Procedure Code sections 1218 and 1219, a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order, is subject to a contempt adjudication and statutory contempt penalties. Under California Penal Code section 166, contempt of court refers to any behavior that is disrespectful to the court process, including but not limited to, willfully disobeying a court order. The consequences of this may include jail time and/or fines.
The recent Michigan case involved a mother who was ordered, through a custody agreement, to maintain the child’s vaccinations. Despite this, the mother told the judge that she was personally opposed to vaccinating her son, and thus would not comply with the court order. This resulted in the mother being held in contempt of court, and the judge ordering her to spend 7 days in jail. The issue at hand was not specifically focused on the child being vaccinated or not, but rather on the mother’s willful disobedience of a clear order to maintain her child’s vaccinations.
The issue of complying with a court order is one that California is clear on. As such, if you are ordered by a court to maintain your child’s vaccinations, you must comply, or risk being held in contempt. However, in the event you are held in contempt of court, you do maintain your due process protections in the contempt proceeding. Contempt proceedings are criminal in nature, which means you have the right to notice, the opportunity to be heard, the right to counsel, the criminal burden of proof (beyond a reasonable doubt), and in some cases, the right to a jury trial.
If you have an issue concerning your rights regarding vaccinations, compliance with court orders, or contempt of court, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer a free half-hour consultations.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
HOW TO AVOID CONFLICT IN ESTATE PLANNING
/0 Comments/in Estate Planning /by Michael LonichSome say, “if there is a will, there is a family fighting over it.” But a brawl between loved ones isn’t necessary if these 6 tips are followed.
1. Make A Plan!
You do not want to leave uncertainty and confusion for your loved ones when you pass. Do not take a “they will figure it out” approach. This is most likely lead to confusion, conflict, and possibly court. Be detailed in your wishes and instructions. If you fail to be clear or make a plan all together then it will be up to the court in deciding who is given what.
There are several options available when deciding an estate plan and what is best for your best friend may not be best for you. Therefore, it may be wise to meet with a knowledgeable estate attorney who can guide you through your planning options.
2. Update On The Regular
Once you make a plan – keep it updated. This does not need to be a weekly event, but it does need to happen when there is a change in life circumstances. These events may include: a divorce, a marriage, change in property ownership, or having a baby.
3. Do Not Rely On Family Utopia
Even if your family gatherings are like a glimpse into Utopia itself, do not rely on everyone agreeing all the time. Life is complicated and constantly changing. Therefore, if a child’s life circumstances change their goals may no longer align with everyone else’s. Change is normal in life and your estate plan should reflect that.
4. Communicate
You are not required to talk to your loved ones about your plans, but this tip is encouraged. Family input may be beneficial and it will lessen the chances of someone being surprised later on. It is also important to communicate in order to have everyone on the same page regarding issues such as: plans for a disabled child, the succession of the family business, or for the continued enjoyment of a vacation home. Although it may be an awkward conversation, it is important to have these discussions.
5. Remove Assets From Probate
Probate is something most people try to avoid and if you want your loved ones getting the most from what you left them, you will too. Two common ways to avoid probate is through revocable trusts and beneficiary designations. Another way to help avoid probate is to make sure the named beneficiaries in other asset documents are consistent with your whole plan. However, once again, it is important to discuss what estate plan options are best for you with an attorney – a revocable trust may not be it and you may be able to avoid probate through other avenues.
6. Consider Someone Outside The Family In Charge Of Assets
Some good choices are a law firm or trust company. By naming someone not in the family, it will help reduce the risk of disharmony. It is crucial to make a smart choice in appointing a Trustee and Agents under Powers of Attorney. You should not make this decision based solely on who is your favorite to hang out with. There are a multitude of factors to take into consideration and you should speak openly with your attorney to decide who would be best for the position.
If you are considering creating an estate plan and would like more information, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
CHARITABLE BEQUEST
/0 Comments/in Estate Planning /by Michael LonichIn 2016, charitable giving amounts reached record levels – $390.05 billion to be exact. This increase and the overall size of charitable contributions is testament to the integral role charities play in our lives. Thus, for people who have given to charities and organizations throughout their lives many wish for its continuance after their death.
Can I give assets to a charity or organization after I die?
An estate attorney can draft a charitable bequest provision for individuals who wish to bequest certain assets to an organization or charity. A charitable bequest is a written statement in a person’s will that directs a gift to be made to a charity upon the death of the testator, the maker of the will. However, there are other options available and it is therefore important to speak with an attorney to best fulfill your wishes.
What can I bequest to a charity?
There are many things you can give. A set money amount or real property, such as a home or land are two options. Additionally, an individual may bequest tangible personal property such as: a jet, car, artwork, antiques, or collectables. It is important to consider what the charity or organization can use best; some would greatly appreciate a parcel of land, while others would be better served with receiving money.
How do I bequest these assets?
There are different formats a testator may choose from.
The most common is called a general bequest. This allocates a set amount of money paid to a particular beneficiary. It is charged against the estate at death and must be satisfied.
The next is called a special bequest. This allocates a particular property or dollar amount to be awarded to a beneficiary. However, if you are considering to bequest a property you MUST own that specific property at your death – no other property will satisfy. A special bequest is also the first type of bequest satisfied upon an estate distribution.
A residuary bequest is a third form. This allows the beneficiary to receive assets that remain in the estate after all other bequests, as well as any tax or administrative costs, have been satisfied.
The final form is a percentage bequest, where a set percentage of the estate’s value is given to a beneficiary. This allows the charity or organization to benefit from the estate’s growth during the donor’s lifetime.
If you are considering bequesting to a charity and would like more information, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
WHO TO PICK AS AN EXECUTOR OF YOUR WILL
/0 Comments/in Estate Planning /by Michael LonichExecutors of wills have an important job. They are the person who will collect assets of your estate, protect the estate’s property, pay valid claims against the estate, and will distribute estate property to beneficiaries. The work can be extensive and complicated for someone who is not a proper fit, therefore it is essential to pick the right person.
If a person is chosen and does not have the ideal qualities, the estate may find itself being contested. This takes time and is also costly. Therefore, when choosing an executor it is important to look for qualities such as honesty, organization, and being a good communicator.
Having someone who is honest speaks for itself, but having an organized person is important too. Being organized will help your executor effectively distribute and manage your estate. Choosing someone with good communication skills is also helpful since this person will be talking with a variety of people and will be dealing with sensitive situations. Also take into consideration the location of who you are considering to choose. An executor may have to appear in court, check the property mail, and handle the property’s maintenance. These jobs may be easier for someone located close by versus someone out of the area.
There are a multitude of options for who can be your executor. An obvious choice is your partner or spouse. They are most likely to know your intentions for your estate. But if they are later in years, they may not be able to handle everything that needs to be done.
Children are another popular choice. For this option, take into account family dynamics; if you know choosing one child as executor and excluding another would cause problems then it may be best to name both as co-executors. This may be an option if both hold the qualities mentioned before. Also naming siblings as co-executors allows them to divide up responsibilities so not all duties fall on one child alone. However, if one child is obviously not qualified to be an executor it may be better to exclude them. In these situations, it is helpful to discuss the situation with your children that way they are able to hear from you why you chose one sibling over another.
If you do not have a spouse or children to name as executor, don’t despair. You can name other close family members or friends. Just make sure they have an idea of your intentions for your estate and possess the qualities that will help distributing the estate successfully.
However, if none of the above options are appealing, or if you have a particular complex estate then you may want to hire a specialist such as an attorney, bank, or trust company. Although this option costs an additional amount, these entities are experts in closing out an estate and distributing the property to beneficiaries. There is also less stress involved since they are not personally involved in the estate and are not mourning the loss of someone while distributing their property.
Whomever you choose, you must communicate with that individual that you are considering them to be your executor. This is an important role and they should be willing to do the job. If they decline, try not to take it personally; it’s a large job and there are plenty of options.
If you would like more information about estate planning, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
WHO GETS THE DOG?
/0 Comments/in Family Law /by Virginia LivelyTo many couples, their dog is more than a pet or piece of property, but is a member of the family. When couples make the decision to get a divorce, the issue of who gets the dog can be a deeply emotional one. Will the couple share custody, have sole custody with visitation, split the pets, or have one party get sole custody with no visitation rights? While the couple may consider the dog a member of the family, California courts look at the fury friend as personal property, much like a car or TV. This means who gets the dog is based on community personal property laws, and factors like who takes care of the dog, who remembers to feed him/her, or take him/her for walks will only be marginally considered. Instead, the Court is going to consider things like the date of purchase, whether a gift was intended, and what monetary value is associated with the dog. From a legal perspective, this is the same inquiry you would go through when determining who gets the furniture, but from the owner’s perspective, this is going to feel like actually splitting the “baby” in half. So how is the law going to “divide” Fido?
The first question is whether the dog is community or separate property. The court will look at when the dog was acquired. This means when the dog was purchased or, if you’re a true animal lover, when your pet was adopted. If the dog was purchased or adopted by one person prior to marriage, then the dog is that spouse’s separate property, and will remain with the original owner.
If the dog was adopted or purchased during the marriage, the next question is why was it? Was the dog purchased together, to be both parties’ pet, or was it purchased by one person as a gift to the other? If the dog was purchased/adopted during marriage, then the dog is community property, and the Court will need to award the dog to one party over the other. If however, the dog was a gift, the issue of transmutation arises. Transmutation is the change in character of property during the marriage. To be a valid transmutation, you generally need a writing with an express declaration of the property that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. There is an exception to the signed writing requirement; if the gift is an interspousal gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made, and the gift is not substantial in value taking into account the financial circumstances of the marriage (Cal. Fam. Code section 852).
If the dog was acquired during the marriage and is considered community property, the Court will need to determine which spouse to award the dog to. Although dogs are still primarily looked at as personal property, there is a growing tendency among judges to determine ownership of the dog based on the interests of the pet. California Family Code Section 6320 allows the judge to issue a protective order granting exclusive care, possession or control of a domestic animal to one spouse if there is a showing of good cause that there is a risk of the other spouse harming the animal. Judges are beginning to consider what is best for the pet, rather than just looking at them as property. The judge may consider if there are kids and which spouse will be awarded their custody, who has the financial ability to care for the animal, who the dog is attached to, and if one party will be dangerous to the animal.
While the court will determine where the dog will go in the event the parties cannot agree, it is important to know that you can determine who gets the dog outside of court, as you would any other personal property, in a settlement agreement. This means you can determine who gets custody of the dog, set a visitation schedule, decide who is responsible for transporting the dog, who will pay for vet visits, food, and other needs, etc. Further, the rules discussed above do not just apply to dogs, but will apply to any other furry or winged friends at issue.
If you are seeking information or counsel regarding divorce, division of assets, or, more specifically, who will get the pet in the event of divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
WHAT HAPPENS IF YOU DISOBEY A COURT ORDER TO VACCINATE YOUR CHILD?
/0 Comments/in Family Law /by Gina PolicastriFor many parents, the topic of vaccinations is a very personal one. There are strong stances on both sides of the vaccination divide, with some believing that vaccinations should be mandatory, and others believing that the decision to vaccinate should be their own. While the issue most commonly arises between parents and educational institutions, it is becoming more common for it to arise between separated parents. Although California has yet to decide a case involving violation of a court order for vaccinations, a recent Michigan case sheds some light on how California might rule on this issue.
In general, California has strict vaccination laws. California, along with the other 49 states, requires that school-age children be vaccinated against childhood diseases as a condition to attending school and day care programs. While some states do recognize your right to not vaccinate on religious grounds, and others recognize your right to not vaccinate on moral or philosophical grounds, California is not one of those states. The only permitted exemptions in California are for valid medical reasons. According to the National Vaccine Information Center, to qualify under a medical exemption, a parent or guardian must submit a written statement from a licensed physician (M.D. or D.O.) which confirms that the physical condition or medical circumstances of the child is such that the required immunization is not indicated, states which vaccines are being exempted, whether the medical exemption is permanent or temporary, and the expiration date, if the exemption is temporary.
The list of recognized medical exemptions in California is very narrow. You may find it at the National Vaccine Information Center website. It includes Autoimmune Conditions, Hyper immune conditions, Immune cancers, Immune deficiencies, Genetic SNP’s associated with increased vaccine reaction risk, and vaccine reactions. However, the state will not provide an exemption for ADD, behavior issues, psychiatric diseases, Asperger’s, Autism, neurologic diseases, hypertension, heart disease, liver disease, kidney disease, or adult onset diabetes.
Similarly, California’s contempt statutes contemplate strict compliance with a court order. Under California Civil Procedure Code sections 1218 and 1219, a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order, is subject to a contempt adjudication and statutory contempt penalties. Under California Penal Code section 166, contempt of court refers to any behavior that is disrespectful to the court process, including but not limited to, willfully disobeying a court order. The consequences of this may include jail time and/or fines.
The recent Michigan case involved a mother who was ordered, through a custody agreement, to maintain the child’s vaccinations. Despite this, the mother told the judge that she was personally opposed to vaccinating her son, and thus would not comply with the court order. This resulted in the mother being held in contempt of court, and the judge ordering her to spend 7 days in jail. The issue at hand was not specifically focused on the child being vaccinated or not, but rather on the mother’s willful disobedience of a clear order to maintain her child’s vaccinations.
The issue of complying with a court order is one that California is clear on. As such, if you are ordered by a court to maintain your child’s vaccinations, you must comply, or risk being held in contempt. However, in the event you are held in contempt of court, you do maintain your due process protections in the contempt proceeding. Contempt proceedings are criminal in nature, which means you have the right to notice, the opportunity to be heard, the right to counsel, the criminal burden of proof (beyond a reasonable doubt), and in some cases, the right to a jury trial.
If you have an issue concerning your rights regarding vaccinations, compliance with court orders, or contempt of court, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer a free half-hour consultations.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
IRS Withdraws Its Support of The Proposed Change to The Estate Tax Valuation Rules
/0 Comments/in Estate Planning /by Michael LonichThe US Treasury originally enacted IRC Section 2704 in 1990 to prevent people from taking advantage of the tax system. Specifically, IRC Section 2704(b) states that in valuing property for estate and gift tax purposes, some restrictions on the ability of an entity to liquidate would be disregarded. Currently, the regulation permits certain discounts for lack of control (minority interests) and lack of marketability that are commonly applied to lower the value of transferred interests for gift, estate, and generation-skipping tax purposes.
On August 3, 2016, The Treasury published proposed regulations under IRC Section 2704 that would have disallowed valuation discounts for interest in family controlled businesses that currently apply to gift and estate tax planning. By eliminating the valuation discounts, the proposed regulation would negatively impact succession planning for many small family owned businesses.
On October 4, 2017, the Treasury announced its withdrawal of the proposed regulations, explaining that they took an “unworkable” approach to the problem of artificial valuation discounts. In a press statement, the Treasury stated that the IRC Section 2704 proposed regulations: “would have hurt family-owned and operated businesses by limiting valuation discounts. The regulations would have made it difficult and costly for a family to transfer their businesses to the next generation.” Certainly, if passed, the proposed regulations would have disallowed discounts for lack of control and marketability commonly used by families in wealth transfer planning.
While the Treasury withdrew its proposed valuation regulations, it has released its annual inflation-indexed amounts for 2018:
1. The annual gift tax exclusion amount (i.e., the amount that can be given annually gift-tax-free to an unlimited number of donees) will increase to $15,000 per donee (or $30,000 for a married couple that elects to split gifts for the year), up from $14,000 in 2017.
2. The annual gift tax exclusion amount for gifts to a spouse who is not a United States citizen will increase to $152,000, up from $149,000.
3. The gift, estate, and GST tax exemption amount (i.e., the amount of taxable transfers that can be given transfer-tax-free in the aggregate during lifetime or at death) will increase to $5.6 million per person (or $11.2 million for a married couple), up from $5.49 million.
4. Recipients of gifts from foreign persons who are corporations or partnerships must report such gifts if the aggregate value of the gifts received in 2018 exceeds $16,111. The threshold for reporting gifts from a foreign person who is an individual will remain at $100,000.
Consulting with an attorney to learn about how valuation and taxation can impact your testamentary wishes is always wise. If you have any questions about your estate planning needs, please contact the experienced attorneys at Lonich Patton Ehrlich Policastri—we offer free half-hour consultations.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Filing for Divorce After a Temporary Restraining Order
/in Family Law /by Michael LonichFor many people in abusive marriages, the question is not whether to file for divorce or stick it out in a violent marriage. The question is how to file for divorce while remaining physically and financially safe from retaliatory spousal abuse. Audrina Patridge faced this exact question. Until recently, Audrina was stuck in an abusive marriage where she faced an aggressive, controlling, and physically threatening spouse. It is reported that Audrina wanted to file for divorce but she was scared that if she did, her husband, Corey Bohan, would retaliate with physical harm to Audrina, their one-year old daughter, or Audrina’s family members. Like others in similar situations, Audrina was scared to file for divorce without additional protection. Fortunately, the Family Court can provide additional protections for people in Audrina’s situation. That additional protection comes in the form of a Domestic Violence Temporary Restraining Order (DVTRO). On September 18, 2017, Audrina was granted a DVTRO against Corey. Audrina sought the restraining order as a protective measure for herself and her family members while she initiated divorce proceedings against Corey.
A DVTRO provides the abused spouse immediate, but temporary protection from the alleged abuser. There are numerous protections available under a DVTRO, protections that go far beyond simply keeping the alleged abuser away from the abused spouse. Additional available protections include, but are not limited to, child custody and support, an order for the alleged abuser to move out of the residence, orders that specify which spouse must pay debts, and property control. The myriad protections available under a DVTRO address the reality of domestic violence situations; the abused individual needs to protect their physical and financial safety, as well as that of their children, or other family members, including pets. For Audrina, the DVTRO enabled her to file for divorce with the confidence that she and her family would be safe from threats or acts of violence from Corey. With the DVTRO in place, Audrina filed her petition for divorce on September 20, 2017.
When a DVTRO is issued precedent to or simultaneously with a petition for divorce, the terms of the DVTRO necessarily become the status quo at the start of the divorce proceeding. Thus, it is important that an abused spouse obtain a DVTRO with as many protections as are applicable to their unique situation, as those terms will likely remain in place, regardless of the outcome of the domestic violence proceeding. By example, if the abused spouse requested a “move out” order and/or exclusive use and possession of the family residence, the alleged abuser will have to find alternate housing, and often, the alleged abuser will have to do so even after the DVTRO expires. When child custody orders originate from a DVTRO, the Court will modify custody orders only in rare instances, and typically it will only do so after numerous court appearances, and/or other ancillary interventions that take place over many months, e.g., the alleged abuser having professionally supervised visitation, parenting/anti-abuse classes, etc. In light of the above, it is critical that individuals who need a DVTRO to enable them to safely initiate divorce proceedings, consult with an attorney to carefully draft their DVTRO.
For more information about obtaining a DVTRO and/or a divorce in California, please contact our attorneys at Lonich Patton Ehrlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Estate Planning for Special Needs Children
/in Estate Planning /by Michael LonichHaving a child with special needs brings countless challenges to overcome. Parents of these children, regardless of age, are their biggest advocates, providers, and caretakers. Life is unpredictable, but if parents have a well thought out plan they can take comfort in knowing their child will continue to be provided for. Therefore, it is essential that parents of a special needs child plan early regarding their estate.
Setting out an estate plan to provide for a child with special needs has its own unique hurdles. One is to design a plan that supplements a child’s government benefits while enhancing the quality of the child’s life. As a parent, if you leave your child too much outright this may risk them losing their public benefits. Another hurdle to overcome is to figure out how to provide for proper supervision, management, and distribution of the inheritance through a third party created and funded Special Needs Trust. The task of estate planning may feel daunting at times, but with a knowledgeable attorney and good organization parents can execute a successful estate plan.
The ultimate goal is to preserve public benefits for a disabled child. Parents will want the plan to provide a lifetime of money management for the child’s benefit, protect the child’s eligibility for public benefits, and ensure a pool of funds available for future use in the event public funding ceases or is restricted.
These goals can be accomplished by executing a Special Needs Trust. If properly drafted and administered, a Special Needs Trust will allow the child to continually qualify for public assisted programs even though their parents have left them an inheritance. This occurs since the assets are not directly available to the child and because this type of trust has strict limits on the trustee’s availability to give money to the child.
Parents who draft a Special Needs Trust will appoint a trustee to act as the child’s money manager. This is a very important decision because it will ensure the long-term success of the Special Needs Trust. Parents should closely counsel with their attorney before making this selection.
Parents may also wish to appoint a guardian or conservator. A conservatorship or guardianship are court proceedings that designate a person to handle certain affairs for an incapacitated person. Where a conservator cares for the estate and financial affairs, a guardian is responsible for personal affairs such as where the child lives or what doctor they see.
Parent’s planning will ensure their child is cared for in the best way possible. But it is important to plan now. If you are considering drafting an estate plan and would like more information about Special Needs Trusts or other options available, please contact the experienced estate law attorneys at Lonich Patton Ehrlich Policastri
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship
How Can Parents Secure Parental Rights in Assisted Reproduction?
/in Family Law /by Mitchell EhrlichMany couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.
Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.
Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.
Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?
Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.
Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.
Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich Patton Ehrlich Policastri to discuss your specific situation.
If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
What Parents with a Disability Need to be Aware of in a Divorce
/in Family Law /by Michael LonichParenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.
The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.
If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.
Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.
There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.
If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.
Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.
If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.