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Estate Planning for Special Needs Children

June 16, 2017/in Estate Planning /by Michael Lonich

Having 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 Erlich 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?

June 5, 2017/in Family Law /by Mitchell Ehrlich

Many 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 Erlich 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 Erlich 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

June 1, 2017/in Family Law /by Michael Lonich

Parenting 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 Erlich 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.

Parenting Plans for School-Aged Children After Divorce

May 24, 2017/in Family Law /by Michael Lonich

Children are undoubtedly important members to a family, but when they are caught in the middle of a divorce short and long-term consequences can occur.

Since school-aged children are more mindful than younger children, they are more likely to be affected by a divorce. Thus, in order to limit the negative effects a divorce will have on your child, an agreed upon parenting plan is key.

Having your child affected by disagreements with your ex should never be a goal. Therefore, it is helpful for both parents to set out ground rules in advance. Make sure you both come to an understanding for acceptable behavior by each around your child.

Life is also uncertain, so in the event of an emergency is it important that the other parent knows of changes to phone numbers, work information, or home addresses as soon as possible. In addition to being notified of important contact information, each parent should have access to your child’s school and medical records and allowed to be contacted by your child’s school.

Keep one another informed about your child’s life and school. Education, sports, music programs, and other events are important to your child during this age. It is important for you and your ex to agree upon specific school or extracurricular events each will attend; either alone or at the same time. Remember being present at your child’s events will give them a sense of support in an otherwise turbulent time.

Additionally, clarity and order in a schedule is going to become the best asset you can provide your child. Figuring out a schedule on how you and your ex will handle exchanges, custody, and visitation should be a high priority on the list of “To Do.” These situations are stressful, but exchanges and transitions between homes can be especially hard for children when not carefully handled. Create a consistent weekly or monthly schedule in advance. This schedule should be clear on when and where your child is staying including where the child will spend summer vacations and holidays. Having a consistent schedule in advance allows your child to acclimate to this new lifestyle and will help other areas in their life to become less disturbed. Yet, some terms of divorce can make this objective difficult or even impossible to obtain without the aid of attorneys.

Above all, your child’s comfort should be a main objective. Make sure each home the child is staying at is equipped with all their necessities. This will help them feel secure, cared for, and comfortable. Some things to always keep stocked are: extra set of clothes; favorite books, toys, or games; and specific childcare supplies or medication.

If you are considering a divorce or legal separation and would like more information about how to create a parenting plan suited to your child’s needs, please contact the experienced family law attorneys at Lonich Patton Erlich 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.

Alternative Custody Schedules: Bird’s Nest Custody

July 7, 2016/in Family Law /by David Patton

Divorce is always difficult—especially when children are involved. Consequently, there will never be a “one size fits all” approach to child custody. Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule. Enter: bird’s nest custody. Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences. More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another. In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches. Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive. Instead of maintaining two homes, a family must maintain three homes. Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences. Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement. Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents. First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split. Second, parents may have trouble moving on if they maintain such strong ties to their marital home. Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful. Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason! The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family. Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.” Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich Patton Erlich Policastri—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each 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.

Source: Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

Mom and Dad Have Something to Tell You: Talking to Kids about Divorce

June 8, 2015/in Family Law /by Mitchell Ehrlich

With forty to fifty percent of married couples proceeding in marriage dissolution, thousands of children experience the stress of divorce each year. While the adults are navigating their own emotions, children are also struggling with their own feelings. Many of these children get lost in the process as their parents often find it difficult to talk to them about divorce.

When parents decide to break the news to their children, it is important to leave any feelings of anger or blame out. Practicing the conversation may be helpful as to release any feelings of anger before talking with them. If possible, parents should also break the news together to avoid confusion. Telling children together also helps to preserve the child’s sense of trust in both parents.

The conversation should also be age appropriate. In other words, “[t]he discussion should fit the child’s age, maturity, and temperament.” It should also always include the following message: “What happened is between mom and dad and is not the child’s fault.” It is imperative to include this message as most children will feel that they are to blame for the separation, when this may be far from reality.

It is also vital to be prepared to handle children’s reactions to the news. For the children who become upset, parents can let them know that they care about these feelings and reassure them that their feelings are understandable. Some children may not react immediately. For these children, parents can let them know that this is also okay and that they will be there for them when they are ready to talk.

While there is no easy way for parents to break the news to their children, there are important things that both parents can do to help guide their children through this challenging time. The following is a list of helpful tips:

· Be truthful and discuss changes with your children.

· For younger children, have a simple and to-the-point conversation.

· Remember to keep legal talk, heated discussions, and visible conflict away from the children.

· It is important to keep each parent involved in the children’s lives.

· Try to minimize any disruptions in their daily routines.

· Restrict negative talk to private therapy sessions or conversations with friends outside of the home.

· Encourage children to share their feelings.

· Remind your children how much you love them.

· Most importantly, support your child as he or she is navigating through the process.

The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you have any questions about helping your children through this process, please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information. 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.

Source: http://kidshealth.org/parent/positive/talk/help_child_divorce.html

Source: http://www.redlandsdailyfacts.com/social-affairs/20150530/the-ins-and-outs-of-talking-to-kids-about-divorce

Source: http://www.babycenter.com/0_how-to-tell-your-child-youre-getting-divorced_3657051.bc

Automatic Temporary Restraining Orders or ATROs: Positive or Negative

May 22, 2015/in Family Law /by Riley Pennington

While there are marriages that end on good terms and amicably, this is a rarity in today’s world. The “ideal” divorce is hard to find and in reality, most marriages do not dissolve so easily, and from the moment a spouse is served, their emotions can get the best of them. They may act out- draining community accounts, cancelling joint benefits, or even threatening to withhold or leave with the parties’ children. This is when Automatic Temporary Restraining Orders, or “ATROs” come into play. Unlike a traditional restraining order which protects against other people, ATROs serve to protect the status quo of the marriage.

Specifically, California Family Code § 2040(a), which outlines the contents of ATROs, lists the following that both parties are restrained from exploiting during the dissolution process:

removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least give business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party;
cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered;
creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. [1]

As one of the obligations when filing for dissolution of marriage, the Petitioner must file and serve a Summons and a Petition to put the other party on notice that they are being divorced. This Summons, Form FL-100[2] in California, lists the ATROs or the “Standard Family Law Restraining Orders” in their entirety. The ATROs binds both parties and becomes effective immediately upon the service of the Summons.

ATROs impact to main issues in a divorce proceeding: travel with children and finances. ATROs temporary “freezes” both parties financial assets and forbids travel with children outside of the state of California without the prior written consent of the other party, or a court order.

An interesting case involving the effect of ATROs in the marital dissolution proceedings is of John McTiernan, director of big Hollywood films such as Bruce Willis’s Die Hard and his ex-wife, Donna Dubrow. [3] During the course of their dissolution proceedings, McTiernan sold certain community property stocks, which he partially used to pay community expenses. However, ATROs forbids the transfer or disposing of any property, “whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.” The court found that although he did not sell these stocks in ill will or maliciously, it was nevertheless a violation of ATROs because he could have consulted his wife or obtained court approval. Since he did neither, the court awarded Dubrow with restitution damages resulting from the sale of the stocks.

Essentially, ATROs protect both spouses and any disruptions to their “financial status, home life, and relationships with children while in the process of dissolving their marriage.”[4] If either party were worried about either finances or their relationships with their children, these items should be prioritized during the process. The concerned party may want to immediately file for temporary custody orders or even reach out to the other party about accounts and assets. In an already upsetting and tense situation, ATROs helps to safeguard a degree of respect between the divorcing couple and may even relieve some of anxiety and mistrust that so often results in the marriage dissolution process. For these reasons, ATROs are an invaluable tool during divorce proceedings. [5]

If you are considering filing for divorce at any time of the year and have questions regarding ATROs, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information. 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.

[1] Cal. Fam. Code § 2040(a) (West).

[2] http://www.courts.ca.gov/documents/fl110.pdf

[3] In re the Marriage of John McTiernan and Donna Dubrow (2005) 133 Cal. App. 4th 1090.

[4] Dana Warstler, A History of the Automatics TROS in Family Code 2040(A), 11 J. Contemp. Legal Issues 191, 191 (2000).

[5] http://www.more.com/relationships/marriage-divorce/what-divorcing-women-need-know-about-automatic-temporary-restraining-?page=2

Philip Hoffman’s Will: What Should He Have Changed?

February 27, 2014/in Estate Planning /by Michael Lonich

In a previous blog, we stressed the importance of updating your estate planning documents as your life changes. Using actor Paul Walker as an example, we explained how he made many excellent estate planning decisions during his young life. Yet, his estate plan still had substantial shortcomings due to a failure to update. Likewise, actor Philip Seymour Hoffman’s final will has recently been submitted into court with a similar, avoidable pitfall: his last will was signed in October 2004. Multiple significant life changes have occurred in the past 10 years that ought to have been, but were not, addressed in his will.

One particular final wish that stands out in Hoffman’s will is that the actor does not want his son, Cooper, to grow up in Hollywood. The late Oscar winner requested that Cooper – who was his only child at the time the document was written – to be “raised and reside in” Manhattan, Chicago, or San Francisco.

“If my guardian cannot reside in any of such cities, then it is my strong desire, and not direction, that my son, Cooper Hoffman, visit these cities at least twice per year throughout such guardianship,” Hoffman explained in the 13-page document. “The purpose of his request is so that my son will be exposed to the culture, arts and architecture that such cities offer.” This provision was the result of smart estate planning, because noticeably absent amongst those cities is Los Angeles, where Hoffman spent much of his working life. However, Hoffman leaves no question as to his intent for Cooper: he bolstered this provision in his will by explaining why those particular cities were chosen. A well-written will leaves no room to question the signor’s intent; no reason to think: “Maybe Mr. Hoffman simply forgot to include Los Angeles.”

Sadly, however, because Hoffman failed to update his will for so long, his intentions for his two daughters were not addressed. Hoffman went on to have two daughters after 2004, but no one will know what Hoffman wanted for his daughters Tallulah, 7, and Willa, 5. As we suggested in our previous blog, you should consider your estate plan to be a living and breathing document; as your life changes, your estate planning documents should accordingly change with it. The top three red flags that should signal you to update your will are:

A change in your family,
A change in your estate, and
A change in the estate tax laws.

Since your estate plan should be constantly evolving along with your life and the law, having a good relationship with a reputable estate planning attorney is imperative. If you are interested in creating an estate plan or have any questions regarding your current 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 living wills and 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.

Source: http://celebrity.yahoo.com/blogs/celeb-news/philip-seymour-hoffman-s-will-revealed–did-not-want-son-raised-in-los-angeles-220210762.html

Posts

Estate Planning for Special Needs Children

How Can Parents Secure Parental Rights in Assisted Reproduction?

What Parents with a Disability Need to be Aware of in a Divorce

Parenting Plans for School-Aged Children After Divorce

Alternative Custody Schedules: Bird’s Nest Custody

Mom and Dad Have Something to Tell You: Talking to Kids about Divorce

Automatic Temporary Restraining Orders or ATROs: Positive or Negative

Philip Hoffman’s Will: What Should He Have Changed?

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