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The Indian Child Welfare Act: Child Custody and Adoption Issues Hit The Supreme Court

June 13, 2013/in Family Law /by Gretchen Boger

Family law cases, albeit important, are almost never heard by the U.S. Supreme Court because the Tenth Amendment typically leaves family matters to the states. However, a recent custody clash over an adorable Native American girl has found its way to our nation’s highest court, giving the Justices an opportunity to scrutinize the 1978 Indian Child Welfare Act (ICWA). The law was put in place to protect the one-third of Native American families who were losing their children to white foster and adoptive parents. However, as you will see, this 35-year-old law and its sweeping effects may be out of place in today’s modern society.

At the heart of the current dispute is a three-year-old girl who is the product of a relationship between a Cherokee Indian man and a Hispanic woman. The couple was previously engaged but, when the couple broke up before the child’s birth, the father let the pregnant woman know that he was relinquishing all of his parental rights. The child was born, put up for adoption, and spent two years with her adoptive parents until a South Carolina Court ordered that the girl be returned to her biological father. Apparently, the child’s father only intended to relinquish his parental rights to the Mother—not to an adoptive family—and he objected to the adoption four months after the adoption took place.

The little girl’s adoptive family is devastated, and rightfully so. If the state of South Carolina was permitted to apply its standard child custody procedures, and the “best interest of the child” standard adopted by many states including California, the biological father would have had no rights whatsoever and the little girl could have remained with the parents who raised her from infancy. Nevertheless, in the United States, the U.S. Constitution and Federal Statutes enacted by Congress are the supreme law of the land and completely trump any state laws that come into conflict. Justice Kennedy noted, “What we have here is a question of a federal statute which…displaces the ordinary best interest [of the child] determinations of the state courts.”

The Supreme Court will deliver its opinion on this case later this month. In all likelihood, the effects of the decision will reach not only families interested in domestic adoption, but will also touch on the bigger question that asks who is best-suited to handle family law matters or determine parenthood—the states and their family courts or the federal government? We should have an answer soon.

As you can see, even simple family law matters like adoption can quickly become complicated. If you have any questions relating to adoption or any other family law issue, please contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law matters and would be happy to meet with you for a free consultation.

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 is Important for Women Too

June 10, 2013/in Estate Planning /by Michael Lonich

In fact, it’s arguably more important for women than men. Though a 2011 survey shows that women are more concerned with maintaining their weight than protecting their financial assets, there are several reasons why it would be wise to reconsider and rearrange those two priorities. For example:

Women live longer on average
- By age 65, women are nearly 3 times as likely as men to be widowed, and as the surviving spouse, they will decide where the couple’s wealth goes after her death.
Women tend to survive their spouses
- Retirement planning is a major issue – to ensure that their standard of living during later years does not decline, women need to make informed decisions about where to allocate their assets in order to protect their future.
Women often have custody of their children
- In 2009, approximately 82% of custodial parents were women, making estate planning crucial to ensure that their children are cared for if unexpected circumstances arise.
Women are often the caregivers
- Advanced estate planning will protect dependent grandchildren and aging parents – and even beloved pets – in the event of incapacity.
Women are often professionals
- Although prior to 1975, men had the sole legal authority to control and manage community property*, that simply is not the case anymore – today, women are often professionals with significant businesses, careers, and assets to protect.
Women today often choose to remain unmarried
- Without a proper estate plan in place, the state will determine who receives an unmarried woman’s assets and property – rather than her particularly close friend or a long-time partner.

At the very least, women should be as equally active in seeking estate planning tools as men – if not more. Whether you are single, married, divorced, or widowed, you will benefit from seeking out the various options you have to protect yourself. Estate planning can be overwhelming, but being educated and prepared will allow you to provide the best possible future for yourself, your family, and your loved ones.

If you have any questions regarding your estate or are interested in creating a new estate plan, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including wills and living trusts, and we are happy to offer you a free consultation.

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.

*Married Woman’s Special Presumption, Cal. Fam. Code Section 803.

My Spouse Won’t Sign: Till Death Do Us Part?

June 5, 2013/in Family Law /by Mitchell Ehrlich

When contemplating divorce, it is hard to ignore the “what-ifs” that inevitably arise. Questions like, “who will get the house?” and “where will our kids end up living?” are complicated, and you will inevitably receive the typical lawyer response from your attorney—“it depends.” This is because most questions regarding divorce really do depend on the circumstances of your case. While there is substantial California family law which the Court will apply to the facts of your particular case, it is impossible to predict or guarantee outcomes with absolute certainty. In some cases it can take months before you see concrete results. Nevertheless, there is one great guarantee with divorce law in California: as long as you are a California resident*, you are entitled to a divorce if you want one.

We have all seen a movie where one party is trying to obtain a divorce, but the other party just won’t sign the divorce papers. Sometimes the other party is a romantic who is holding out for reconciliation, but nine times out of ten, the other party refuses to cooperate out of spite. Worried this could happen to you? Never fear! If the only certainty you have is that you want a divorce, then go ahead and make preparations to file:

“Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through.”**

The State has your back; California law will not force you to be prisoner to a broken marriage. Unfortunately though, no one can promise that your divorce experience will not resemble a scene from a movie (but there is a way out if your personal life resembles a drama fit for Lifetime). Whether or not anyone is “at fault,” you can file for divorce and either your spouse responds to your papers, or the court will make a decision for him or her. If you are ready to liberate yourself, or are interested in learning more about the divorce process, contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law matters and would be happy to meet with you for a free consultation.

*A “California Resident” is a person who has lived in California for the last 6 months and has lived in the county where the party desiring a divorce has lived for the last 3 months.

**Source: California Courts: Judicial Branch of California, “Options to End a Marriage or Domestic Partnership,” found at: http://www.courts.ca.gov/1224.htm

Spousal Support: Are You Entitled to Any?

June 3, 2013/in Family Law /by David Patton

Ashton Kutcher and Demi Moore’s divorce has been stalled – and purportedly because Demi, who’s estimated to be $10 million richer than Ashton, is seeking spousal support from him in order to renovate her $25 million Central Park apartment. Though it doesn’t appear fair at first glance, courts take into consideration various factors to determine spousal support that could result in a judgment in Demi’s favor.

In regards to your case, could you be entitled to spousal support? Or conversely – could you obligated to pay spousal support for your wealthier spouse? As always in law, it depends.

California courts determine spousal support by taking various circumstances into account, as set forth in California Family Code Section 4320.* They include, but are not limited to:

How much the earning capacity of the party seeking support is affected from unemployment due to devoting time to domestic duties during the marriage;
How much the party contributed to the supporting party’s education, license, or career;
The ability of the supporting party to pay spousal support;
The ability of the supported party to work without interfering with the interests of their children;
The needs of each party (determined by the standard of living established during the marriage);
The duration of the marriage;
The age and health of the parties; and
Any other factors the court determines are “just and equitable.”

Depending on how Demi and Ashton’s attorneys present these fact-sensitive issues, Demi just might get to renovate her sprawling New York apartment – on Ashton’s (many) dime(s).

Spousal support can be a complicated and confusing issue. If you have any questions regarding your spousal support rights and obligations in the event of a divorce, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex dissolution proceedings and are more than happy to meet with you.

*Cal. Fam. Code § 4320

Cheaters Never Prosper: Tortious Interference with Inheritance in California

May 28, 2013/2 Comments/in Estate Planning /by Michael Lonich

Personal injury, otherwise known as “tort,” claims are typically successful only if the complaining individual has suffered an injury-in-fact. Essentially this means that courts will only award damages to persons who have truly been injured—be it physically, financially or, in rare cases, psychologically. In tort law, if you think you will suffer an injury next week an attorney will tell you to call them after you suffer your misfortune, but not before. In many ways this can be unfair, but this policy keeps the courts from being overrun with people suing for injuries that could/might/maybe/we think will happen and never do.

California’s policy against litigating future harm may be shifting, however. In Beckwith v. Dahl, an Orange County Court of Appeal recently determined that California courts can and will recognize the claim of Intentional Interference with an Expected Inheritance (IIEI). In order to recover damages, the claiming party has to prove five specific things:

That there was an expectancy of an inheritance,
There was reasonably certain proof that the will or trust that would benefit the claimant would have been in effect when the giver died if there had not been an interference,
That the inter-meddling third party knew that the claimant expected the inheritance and deliberately interfered,
That the third party’s interference was “independently tortious” (fraud is a good example), and
Finally, that the claimant was damaged by the third party’s interference.

Although the elements look simple enough, the damaged party will recover if, and only if, each and every element is satisfied. Additionally, the jury has to be convinced that these elements exist and the jury must find that the deceased property owner didn’t change his mind at the last minute. Parties who have suffered or feel cheated out of their inheritance should rejoice that they have a new avenue to get what they rightfully deserve.

However, it should be noted that a party cannot successfully file a claim for IIEI in civil court if their issue could be remedied at probate court. This issue, like most estate planning issues, can be complicated and difficult to address without the aid of an attorney. If you have questions about your rights in an estate planning matter, the attorneys at Lonich Patton Erlich Policastri have years of experience handling complex estate planning matters including wills and living trusts. Or, if you are interested in developing your own estate plan or reviewing a currently-existing estate plan, contact the attorneys at Lonich Patton Erlich Policastri for further information or to set up a free consultation.

*See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039.

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Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com

LONICH PATTON EHRLICH POLICASTRI

Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com

1871 The Alameda, Suite 400
San Jose, CA 95126

Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.

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