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Ensuring Your Child’s Safety

January 13, 2012/1 Comment/in Family Law /by Mitchell Ehrlich

George Molho, a kidnapping survivor, has recently shared his experiences from when his father abducted him in 1978 and moved them to Greece from his home in Texas. In sharing his story, Molho (for more information on his new memoir, Scarred, see www.georgemolho.com), a passionate advocate for child kidnapping and abuse victims, is trying to bring awareness to the problem and efforts to develop solutions that protect children.

As a seven-year-old in 1978, Molho was taken from his home in Houston by his father, a man with a bad temper, obsessive need for control, and desire to inflict pain. At the time, no one, not even his mother, believed Molho when he predicted his father’s plan and tried to warn them. When young children express fear or concern about even a close friend or family member, adults tend to chalk it up to shyness, a ploy for attention, or fantasy, Molho said. “Trust your child’s instincts,” he says. “If they act uncomfortable around someone because they can’t verbalize their feelings, or if they tell you they’re uncomfortable, trust them. No matter who it is, if they tell you a person scares them, protect them.”

Molho also offers these lesser-known tips for protecting children from kidnappers, whether they’re friends or family:

Teach children how to fib on the phone. If they’re home alone, for instance, and someone calls asking to speak to their mother or father, they might say, “My mother’s busy in the kitchen right now and asked me to answer the phone and take a message.” Put them to the test by having someone they don’t know, one of your friends or co-workers, call.
Make approved lists of people who will deliver any important news to them. If Mom or Dad is in trouble or hurt, only these people will know and will tell the child. Even if Uncle Bob tells them Mom is in the hospital and the child needs to go with Uncle Bob, if he’s not on the approved list, the child should not go. This is a common ploy.
Teach them, train them and give them permission to defend themselves. This is very important and it saves lives. Most children are taught to be polite and respect adults; it’s far safer to risk offending an adult – even if it turns out the adult meant no harm. Screaming, kicking and running away are perfectly acceptable if a stranger grabs your arm – even if the stranger is smiling sweetly.

Family law proceedings can be contentious. Emotions tend to run high for all those involved; sometimes this leads to actions that endanger the safety of the children caught in the middle. George Molho’s tips may help ensure the safety of your children. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child custody issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Estate Planning Considerations for Family Business Owners

January 12, 2012/in Estate Planning /by Michael Lonich

Family business owners should take extra care to ensure that their interests are protected. Most business owners’ shares represent a large part of their estate’s value. However, few take the time to lock in valuable estate planning benefits that come in the form of a buy-sell agreement.

A buy-sell agreement can help protect an owner’s business interest by ensuring they do not lose control of their ventures and protect their heirs by restricting shareholders, partners, or members of a business from unilaterally transferring an ownership interest to anyone outside the group. Further, since the death of a co-owner could have a disastrous effect on the finances of a business, life insurance policies covering the lives of co-owners generally form the financial backbone of any buy-sell agreement. A buy-sell agreement that is not covered by life insurance death benefits should specify that a buyout should be made under a multi-year installment payment arrangement, which provides remaining co-owners with the flexibility to fund the buyout.

Without a buy-sell agreement, the result on the deceased co-owner’s estate could be drastic. First, there may be no market for the remaining business ownership interest left by the deceased co-owner—the proceeds of which might be necessary to pay estate taxes. Second, heirs of the deceased co-owner will be left to work with the IRS to value the deceased’s share of the business for estate tax purposes, an expensive and time-consuming affair. With a buy-sell agreement, however, a business ownership interest can be sold under pre-approved financial terms and the price set also establishes the (realistic) value of the business ownership interest for estate tax purposes.

If not drafted carefully, the IRS can disregard the buy-sell agreement. To ensure that your buy-sell agreement will withstand IRS scrutiny, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information on these types of transactions. 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.

Loss of Parental Rights = Loss of Standing in Proceedings Concerning the Child

January 4, 2012/in Family Law /by Gina Policastri

Once a parent has acquiesced to a termination of parental rights, he or she has no remaining legal interest in the child’s affairs. This means the parent also does not have standing to appeal orders relating to the child’s placement. A recent California Supreme Case affirmed this rule.

In In re K.C., 52 Cal. 4th 231 (2011), K.C. was one of eight siblings, two of whom were deceased and the other five of whom were placed with grandparents after separate juvenile dependency proceedings resulting in the termination of Mother’s and Father’s parental rights as to the five siblings. While an infant, K.C. was removed from his mother’s custody and placed with a foster family who wished to adopt him. K.C.’s grandparents petitioned for K.C. to be placed with them, however, the child services agency doubted their ability to care for a sixth child and was concerned with the parents’ continued access to the kids. Father did not object to the termination of his parental rights and supported Grandparent’s request. The trial court denied Grandparents’ petition and they failed to timely appeal. Instead, Father appealed the order. However, he did not object to the judgment terminating his parental rights but limited his argument to the issue of K.C.’s placement.

On appeal, the Fifth District Court of Appeal dismissed Father’s appeal and held that Father could not show that the placement decision affected his parental rights and he thus was not aggrieved by the decision. The California Supreme Court affirmed this decision. Only an aggrieved person has standing to appeal, otherwise the party does not have rights or interests injuriously affected by the decision in an immediate and substantial way. Since Father acquiesced to the termination of his parental rights, he relinquished the only interest in K.C. that could render him an aggrieved party.

Throughout child custody or parental termination proceedings, proper objections must be made if a parent does not want to risk losing standing to appeal judgments concerning the child. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex child custody and divorce issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Connecticut Judge Orders Divorcing Couple to Exchange Facebook Passwords

December 6, 2011/in Family Law /by David Patton

Evidence from social networking websites is used more and more often in lawsuits and divorces these days. This information is typically obtained by visiting a party’s page or requesting information from the party personally, not from obtaining a party’s password and signing into their account on your own accord. However, judges are beginning to force parties to surrender passwords to their Facebook accounts.

On September 30, 2011, a Superior Court of Connecticut issued an order requiring “[c]ounsel for each party [] exchange the password(s) of their client’s Facebook and dating website passwords. The parties themselves shall not be given the passwords of the other.” Stephen Gallion v. Courtney Gallion, Clarification of Order. Courtney and Stephen are in a custody battle, and Stephen is seeking full custody of the parties’ children. To bolster his position, he sought access to Courtney’s Facebook and online dating accounts because he and his attorney suspected that they would find evidence of how Courtney feels about her children and her ability to care for them. They requested that the court order Courtney to provide her password; the court ordered the attorneys to exchange the parties’ passwords, and also issued an injunction prohibiting Courtney from deleting any information from these websites. (Summary from Forbes).

As social networking becomes a larger part of our lives, it will play a larger role in our lawsuits. Typically, if a party is ordered to provide social networking data, he or she will be required to produce responsive material (e.g. printouts of a party’s profile page), not the passwords, which would allow the other side to gain unfettered access to more content. However, recent cases show a different pattern. Lawyer and tech blogger Venkat Balasubramani has written about several other civil cases 1) where judges have issued similar orders, including a personal injury case, 2) where judges have taken it upon themselves to sign into someone’s Facebook account and look for evidence, 3) as well as cases where judges have rejected lawyers requesting opposing litigants’ passwords, as in an insurance case involving State Farm (Summary from Forbes).

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed divorce and support issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

November 30, 2011/in Family Law /by Mitchell Ehrlich

On September 16, 2011, the Supreme Court of Tennessee held that a woman who earned $72,000 a year was not entitled to lifetime alimony (permanent alimony) from her higher-earning ex-husband.

In Gonsewski v. Gonsewski, 2011 WL 4116654 (Tenn. Sept. 16, 2011), Johanna and Craig were married for twenty-one years with two adult daughters. Johanna earned $72,000 a year in an IT position and Craig earned more than $137,000 a year as an accountant. At the trial level, the court declined to award spousal support of any type to either party. The Court of Appeals reversed the trial court’s judgment and ordered the husband to pay the wife lifetime alimony in the amount of $1,250 per month until her death or remarriage. The court reasoned that, although there was no need for economic rehabilitation given that Johanna was a college graduate and had a steady career, alimony in futuro was ‘necessary to mitigate the harsh economic realities of divorce’ due to the disparity in the parties’ incomes. Craig appealed.

The issue before the Tennessee Supreme Court was whether permanent alimony should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The court reversed the appellate court decision, noting that it is unlikely that both parties will be able to maintain their pre-divorce lifestyle given two persons living separately incur more expenses than two persons living together and there was no abuse of discretion by the trial court. Thus, Johanna should not be awarded permanent spousal support.

This decision affirmed Tennessee’s traditional analysis of considering both ability and need in making permanent alimony determinations. While Craig may have had the ability to pay lifetime alimony, Johanna did not have the need. In California, courts consider need and ability to pay when setting temporary spousal support, which may be ordered after separation pending trial. However, when setting permanent spousal support, the court must consider approximately fourteen statutory factors, including need and ability to pay, when determining permanent spousal support. As such, it is likely that the Gonsewski case would have been similarly decided in California grounds given the higher standard provided by the fourteen factors set forth in section 4320.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

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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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