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Posts

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 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.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2017-06-05 09:44:292021-12-22 20:10:02How Can Parents Secure Parental Rights in Assisted Reproduction?

Immigration Obstacles for Same-Sex Couples

April 2, 2012/in Family Law /by Gina Policastri

Love and marriage transcends borders all over the world.  It is not unheard of for travelers to meet locals and fall in love and live happily ever after.  In the United States, however, this happenstance does not have a happy ending for same-sex couples.

Federal law prohibits immigration authorities from treating same-sex couples the same as married heterosexual couples.  See Immigration, marriage laws leave same-sex couples in limbo.  Foreign same-sex spouses are viewed neither as married nor as a citizen.  As a result, they cannot leave the country to visit family or friends for fear that they may not be allowed back into the United States and they may not be allowed to work either.  While a U.S. citizen who marries a foreigner of the opposite sex can apply for a green card for the spouse to stay in the country and eventually become a citizen, a U.S. citizen who marries a same-sex foreigner cannot.

The Defense of Marriage Act (DOMA) does not allow same-sex couples to receive federal benefits available to opposite-sex couples no matter if they are married, in a civil union, or living in a state that recognizes same-sex marriage.  Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized cases involving immigrants with serious criminal records and seemingly granted extra discretion in cases involving binational same-sex couples.  However, until Congress repeals DOMA or the courts strike it down, DHS will continue to enforce it.

Federal courts in Massachusetts and California have ruled DOMA unconstitutional and the Justice Department is no longer defending DOMA in federal court, however, the status of binational couples remains in the balance.  The San Jose family law attorneys at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters.  If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Ehrlich Policastri.   Our Certified Family Law Specialists* 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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Gina Policastri https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gina Policastri2012-04-02 09:19:262021-12-22 21:30:26Immigration Obstacles for Same-Sex Couples

Wyoming Supreme Court Grants Same-Sex Divorce

July 18, 2011/1 Comment/in Family Law /by Julia Lemon

Last month, the Wyoming Supreme Court ruled that the state’s courts have jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada.

This decision slightly enhanced the rights of same-sex couples in Wyoming, but does not address the more controversial issue of whether Wyoming will permit same-sex couples to marry. Wyoming law defines marriage, in part, as a civil contract between a male and a female person.  It also provides that all valid, out-of-state marriage contracts are valid in Wyoming.  However, this rule is not absolute and is subject to certain recognized exceptions, such as marriages that are deemed contrary to the law of nature, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity because they are contrary to the policy of its laws.

In its opinion, the Wyoming Supreme Court took great care in ensuring the decision was sufficiently narrow, and expressly limited its decision to the issue of divorce in a footnote: “Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day.”  Christiansen v. Christiansen, 2011 WY 90 (2011).  Recognizing a valid foreign same-sex marriage for the limited purpose of divorce, however, does not negate the law or policy in Wyoming against allowing the creation of same-sex marriages.

Same-sex marriage was, and continues to be a developing area of family law.  New York first considered a similar case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada.

In an effort to simplify the separation process for same-sex couples, the California Legislature recently made significant amendments to the governing law.  The State Assembly adopted the Separation Equity Act of 2010 which clarified that same sex couples married outside the state are able to dissolve their marriage in California.  Additionally, same-sex couples who married during the brief period in 2008 when it was legal will have the rights and benefits of married couples, including divorce.

If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, please contact the experienced Family Law attorneys at Lonich Patton Ehrlich 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.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Julia Lemon https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Julia Lemon2011-07-18 08:50:142021-12-22 21:37:20Wyoming Supreme Court Grants Same-Sex Divorce

Federal Tax Implications for Same-Sex Couples’ California Estate Plans

March 15, 2011/in Estate Planning /by Michael Lonich

California same-sex couples deal with many of the same estate planning issues as opposite-sex couples.  However, they also face several unique challenges relating to the federal tax system.  Therefore, when developing an effective estate plan for a California same-sex couple, the federal tax system should be considered.

One of the most glaring distinctions between married opposite-sex partners and domestic partners under federal tax law is in relation to the federal marital tax deduction.  Domestic partners and same-sex couples legally married in California are not eligible for the unlimited federal marital deduction for property passed outright to a surviving domestic partner or same-sex spouse.  Under the federal Internal Revenue Code (IRC), this deduction is only permissible between “spouses.”  The IRC defines a “spouse” as an opposite-sex married couple.  A qualified California estate planning attorney can advise same-sex couples on transferring assets in a way that minimizes federal taxation.

It is not uncommon for same-sex couples’ estate plans to be challenged by family members.  If there is concern that someone will contest the estate plan, it is best for each party to have their own attorney to avoid an invalidation of the estate plan on grounds of duress or conflict of interest.  Because of many legal uncertainties in characterizing same-sex couples’ income and tax consequences, California domestic partners are best represented by attorneys who have a strong background in family law as well as estate planning law.

For more information about estate planning, please visit the Lonich Patton Ehrlich Policastri website.  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.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2011-03-15 10:23:072021-12-22 21:52:25Federal Tax Implications for Same-Sex Couples’ California Estate Plans

New Federal Regulations Increase Hospital & Visitation Rights for Same-Sex Couples

January 25, 2011/in Estate Planning /by Michael Lonich

Earlier this month, new federal regulations pertaining to hospital visitation became effective.  These regulations require hospitals receiving federal Medicare or Medicaid money to have written visitation policies in place.  The new law also requires hospitals to inform patients (or a patient’s representative) of their rights regarding visitors.

The new regulations require federally funded hospitals to allow patients to designate their own visitors.  The new law also requires hospitals to allow patients the right to make personal decisions regarding whom they will appoint to make medical decisions on their behalf, regardless of gender or sexual identity. Hospitals refusing to comply with these new regulations will risk losing funding.  These new regulations largely increase the rights of same-sex couples in relation to medical decisions.

If you live in California, and if you are interested in protecting your right to appoint a representative to make healthcare decisions during your incapacitation, you may be interested in learning more about an advanced healthcare directive or a durable power of attorney.  An advance healthcare directive allows you to appoint a specified individual to make healthcare decisions based upon your specific wishes in the event you become incapacitated.  A durable power of attorney allows your appointed agent to address your financial and property issues when you are unable to do so.

For more information on a durable power of attorney or an advanced health care directive, please contact us.  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.

Sources:  The Huffington Post; The Columbia Dispatch


https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2011-01-25 09:27:352021-12-22 21:56:29New Federal Regulations Increase Hospital & Visitation Rights for Same-Sex Couples
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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, and San Benito. For a full listing of areas where we practice, please click here.

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