LegalMatch: Family Law

Writing a Living Will.

"THE COMA."

A million movies have played with the idea (with varying degrees of inaccuracy), but the concept never seems to lose its mad-science appeal for theatre goers. “While You Were Sleeping” had its coma-influenced love triangle, “Monkeybone” painted a bizarre comic view of death and dreams, and the 1978 flick “Coma” turned the neurological disorder into an organ-harvesting thriller.

It wasn’t such a huge surprise then, when 2006 came and 39% of people said that they would reference a cinematic scene in case of a real-life coma emergency [1]. Not exactly the kind of inspiring numbers you’d hope for. Not that there’s anything easy about dealing with a family member in a coma! We aren’t exactly provided with coma-related touchstones in our everyday lives, Neurology 101 is hardly a high school staple, and for those with no real medical background, cinema and hearsay could easily provide the only input for imaginings about “being in a coma.”

And what if we do end up in a coma?

It’s a little too late to start making decisions about your health if you’re unconscious and intubated. And unless you’re prepared to rely on relatives to make the best and educated choices about your health, it may be wise to think ahead. Starting now.

Which is where a living will comes in.

Unlike a last will and testament (that document that decides who gets all your stuff), a living will is only valid so long as you’re still living. It’s an official document that specifies exactly how you want things run in case you become medically incapacitated—whether that means being “in a coma” or being affected by a degenerative disease like Alzheimer’s.

A living will usually covers a number of medical questions: 

• Which medical treatments are you willing to receive for your illness?
• Will you allow doctors to perform CPR or restart your heart?
• Will you permit the hospital to intubate you for breathing or feeding?
• Will you permit the use of painkillers? Dialysis?

Even for those of us who aren’t remotely worried about making these kinds of decisions, it can be a good exercise to discuss your preferences and values with your loved ones. While it may seem morbid at first, exploring issues surrounding quality of life, health, and even death can end with you learning more about yourself, your family, and your relationship with the world around you.

by Kate Beall

Alienation of Affection, Marriage, and Lawsuits.

Ever heard of “Heart Balm” laws?
You might want to look them up-- or you could end up being sued by your ex-fiancé.

A cuckolded plumber from Mississippi recently won $750,000 in a similar case, suing his ex-wife’s millionaire lover (and employer) for “alienation of affection” and stealing his bride. Plumber Johnny Valentine had his case when a paternity test confirmed that his wife’s child had been sired by another man.

The Associated Press quotes the Mississippi high court as saying that the purpose of such a suit is “the protection of love, society, companionship, and comfort that form the foundation of a marriage.” A bold statement for a court interfering in the sex lives of consenting (if not so mature) adults.

 

Alienation of affection lawsuits are still active in Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. So if you’re living in one of these states and considering an extramarital affair, beware of local laws.

Living in Alabama, California, Colorado, Florida, Indiana, Massachusetts, Michigan, New Jersey, New York, New Hampshire, Ohio, Pennsylvania, or West Virginia? You can take a deep breath and relax, because these states have all put Heart Balm laws in place for your protection. If you aren’t under the protection of these or similar laws in your State, think twice before you slip on that engagement ring. You could be sued for loss of benefits related to marriage, losses incurred as a result of a broken promise to marry, and even emotional damage such as anxiety, stress, or depression-- all because you changed your mind about getting hitched.

by Kate Beall

When Child Care Becomes a Legal Concern.

Nearly all parents want the best for their children. Mothers and fathers alike are often loathe to part with young children, and turning over child custody can be extremely trying—especially for new parents. Whether you’re taking a night off to catch the latest Bond flick, or stealing a week away to recoup from the rigors of child-rearing, your child’s safety is still priority. But even the best-intentioned parents aren’t perfect judges of character.

When Anahi Ferrando joined the Army in 2005(1), she decided to impart legal custody of her daughter, a 5 year-old quadriplegic, to her boyfriend Michael. But while Anahi served in Iraq, her child began to waste away, starved and neglected by the boyfriend assigned to be her legal provider. By the time the child’s grandfather obtained an ex parte protective order, she weighed only 13 pounds.

Child neglect, like that committed by Anahi’s boyfriend, is merely one of several forms of child abuse. And “neglect” can mean anything from inattention to a child’s emotional needs to depriving a child of food and shelter. As child abuse and neglect are both criminal offenses, they should be dealt with by a skilled criminal law and police lawyer.

 

What responsibilities go along with child custody?

Child custody brings many responsibilities to the table, but these obligations may vary depending on the type of child custody involved. In the case of Anahi Ferrando, Michael was given legal custody over daughter Jade Anzures. Legal custody is the most extensive custody that can be given over a child, giving an adult the right and obligation to make decisions about that child’s upbringing. This obligation extends to cover healthcare, religious, and educational decisions—but it also means that the custodian is entrusted with the safety and well-being of the child in question.

Michael violated his child custody obligations and crossed over into child abuse when he chose not to provide proper food or care for 5 year-old Jade. Grandparents custody and visitation rights were invoked only after it became clear that Anahi’s daughter lacked proper parental care.

If you would like to extend custody for your child to someone else, or would like to claim custody of a child that you feel is improperly cared for, it is in your best interest to consult with a family law lawyer. However, if you ever suspect that a child is in immediate danger (in an emergency situation), please call your local police station or State Child Protection Agency.

 

(1) The Salt Lake Tribune, "Man accused of starving G.I.’s quadriplegic child plans to fight charges." 27 July 2007.

Ten Relationship Tips for Divorced Parents.

As a divorced parent myself, I know from first hand experience how difficult life can be when you're now juggling numerous relationships, the majority of them having been modified in some way or another by the divorce. Of course the primary altered relationship is that with your former spouse and to whatever degree it's probably only a bruised one at best, only slightly singed by regret, guilt or anger. 

Here's ten tips that I picked up from the Kentucky Family Law Blog that were in turn pulled from one of Nolo Press's many fine books and articles. These tips were authored by Emily Doskow - they sure would have been helpful to me those many years ago.

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

Restraining Orders Explained.

Restraining orders are court orders against a person that precludes them from having contact of any type with another person. The time span for a restraining order can range from a couple of days to several years. If a restrained individual violates a court order criminal penalties might be invoked. Restraining orders are usually granted in stalking, abuse and domestic violence situations.

Temporary Restraining Orders (TRO) are much like restraining orders, except they are for a limited time span. TROs generally expire within a week or two, typically until a full hearing for a permanent restraining order can be held. Getting a TRO in most states is a fairly simple task and is usually easy to accomplish. Enforcing restraining orders in civil (non-criminal) disputes is considered a civil proceeding. Police assistance in enforcing of restraining orders varies widely. Therefore, finding the other party in violation of the restraining order is the best way to get a restraining order enforced. This is accomplished by making a request with the court to find the person named in the order in contempt.

Other things to consider about restraining orders: report every violation (no matter how minor) to the issuing court; if a pattern is apparent the restrained person can be held in contempt. Also, you may be able to get assistance in obtaining a restraining order through a legal aid service and/or a battered women’s rights group. It may be in your (and your family’s) interest to consult with a lawyer. Speaking with an attorney is the best way to learn your rights. You can learn more about restraining orders at LegalMatch.com using their popular LegalCenter Law Library.

Posted by Chas Blackford

The Mediation Alternative to the Adversarial Court System.

THE PROCESS OF MEDIATION

Mediation is initially a unilateral choice made by the parties to mutually agree to weave together their different perspectives to create a lasting solution. Mediators must set the tone for the process- a fair process that includes sharing information and empowering participants. Often the environment of equality found in the mediation process is enough to loosen an individual’s position, if they feel they are finally being “heard” for the first time. Then the individual may make a new choice to either suspend their belief or give up the right to blame the other party. In mediation we do not attempt to find out who is right or wrong in the relationship; only answer the question of how we can proceed with the situation as is and what decisions can be rendered now and which will be left for later. For some, mediation also serves the purpose of giving “completion” to the relationship and allowing a respectful reflection of their personal process during the marriage. The power of resolving the conflicts mutually and creating a new relationship is always beneficial, even when painful. The court need actively be involved only where the problem cannot be resolved by such less formal process.

FOCUS OF MEDIATION

The nature of each mediation will dictate the need for individualized care requiring a personalized approach. First and foremost, flexibility and pacing are vital to finding the way. Generally, the mediators encourage interaction between the spouses, assist in the identification of areas of disagreement, as well as agreement, and then work to bring the parties to a resolution; a resolution reached and defined by the parties themselves. The art of mediation is gentleness sprinkled with lots of flexibility and care. We have found that often one or both parties may garner essential emotional support from a concurrent association with a psychotherapist, as that connection tends to diminish the trauma of divorce.

THE WIN OR LOSE COMPETITION

Ultimately, the adversarial system pits parents against parents, as children are placed in the middle of a battle between parents, as if children were a piece of furniture their owners are fighting over. This is obviously antithetical to the best interests of a child. The adversary process is essentially a win or lose competition. Each party attempts to prove to the court why he or she should be the winner and/or the other, the loser. If the winning prize is money or property, the concerns of the sought-after object need not be considered. However, where the sought-after object is a child the dispute is of a totally different nature. While this difference is widely recognized, the conflicts over the best interest of the child continue to take place in a win or lose framework. The adversarial framework dominates because attorneys, no matter how sophisticated their understanding of total family dynamics, can represent only one of two opposing points of view. To achieve victory in the family custody situation, parents sometimes make extreme allegations about their spouses, such as charging the other with sexual abuse of the child. Adversary proceedings sharpen and deepen the parents' differences, and once litigation is initiated; compromise, flexibility, and cooperation are often devalued or impossible to recapture. Thus, the child may be treated like property while parents clog the courts with bitter fights over money, assets, and support. The combative atmosphere makes it more difficult for divorcing couples to reach a settlement and develop a cooperative relationship once the divorce is final.

By Richard Paris, Esq., family law attorney and mediator
rplaw@comcast.net
415-209-6152

Community Property Divorce.

Much is made in the United States about how to best protect your property before, during, and after an unsuccessful marriage.  Part of this has to do with the high rate of divorce in the United States.  While there are contracts that one can sign prior to marriage called prenuptial agreements, many people do not know what will happen if no such agreement is entered into.

In a state such as California, which is considered a community property state, there are very specific rules in determining what is community property and how it will be divided. In general, community property is any property acquired during marriage. Several considerations are common to almost all divorces taking place in a community property state.

First, many people wonder what becomes of inheritance and investments made prior to marriage. For the most part, if this property is maintained in a clearly separate account, then this property will remain what is called separate property.  Commonly, the following are considered separate property in a community property state:

• anything the owner had prior to marriage
• anything inherited or received as a gift during marriage, and
• anything earned after the divorce.

Plus, there are extra considerations if you and your spouse continue to do business together during the divorce.

Another common question arises when the spouses maintained property in a non community property state prior to divorce, but were married in a community property state.  In states like California, in the event this property was merged through common accounts or used by both parties, this property might be considered quasi-community property.

Another complicating aspect of divorces in a community property state is what to do with outstanding creditors who are owed money.  People wonder what will happen to their share of the community property if the other spouse has outstanding debts or judgments against them. While it may not seem fair to some, it is the general law that while these creditors cannot touch your separate property, they can freely access that property which is shared by both.

So how is the community property separated once all of the marital property has been designated one way or another?  It is the common rule that separate property will be maintained by the owner, and community property will be divided equally between the spouses. Because states that adopt the community property distribution do so in an attempt to provide the most equitable solution for marriages in which one partner may have not been working, it is unusual that a court in these jurisdictions will consider distributing more favorably to a party simply because of their tangible contributions to the financial health of the marriage.

By Evan Anderson

The Importance of the Parenting Plan Process.

Many states now require parents to go through a process called Mediation.  Mediation offers parents a controlled environment in which to discuss and establish child custody and visitation arrangements that are in the “best interest of the child.”  The mediators, or “ringleaders” of this whole process, are to be neutral, listen to both parents, help you decide important decisions regarding your child/children, and ultimately make suggestions to the judge.

During a divorce, there often is so much resentment and anger that parents don’t realize that every comment and action is picked up by the child/children involved and ultimately have a negative effect on their lives.  Despite your anger you need to start thinking about the feelings of your child/children.  Right now you absolutely HATE your soon to be ex-spouse but your child/children don’t feel the same way.  To them your ex is their best friend, confidant, and biggest fan.  Do you really want to be the one to try and convince them otherwise?

Prior to entering Mediation think about the type of arrangement you would like to establish.  Who will have Physical Custody?  Will you both share Legal Custody?  Think about where your children will go to school, church or daycare.  Will you and your ex-spouse be living in the same town?  What are your work schedules like?  How will you split transportation expenses from one parent to the other?  How will holidays be divided?  These are all questions that you will want to have answered during the Mediation process.  Your parenting plan should be detailed enough so it is understood and enforceable.  If you have your sights set on making this process work you may even want to read a great book that I recently came across.  It is called The Co-Parenting Survival Guide.  You can read an excerpt here.  This book spells out a dozen golden parent agreement rules that I think all parents should agree to and sign.

What should you bring with you to mediation?  You should without a doubt have a calendar for the current year and maybe even the following year.  This way there will be no question regarding specific days for visits, holidays, etc.  You and your ex-spouse should also bring any and all information you have about your child/children including medical and school records.  I guess the most important thing to bring with you to Mediation is a positive attitude.  Remember you are establishing a Parenting Plan for your children to adjust properly and become productive members of society.  It is hard enough for them to realize that mommy and daddy are no longer going to be in the same house.

I believe that Whitney Houston sums up the importance of our children in her song “Greatest Love of All.”  I will leave you with the following lyrics:  “I believe the children are our are future.  Teach them well and let them lead the way.  Show them all the beauty they possess inside.  Give them a sense of pride to make it easier.  Let the children's laughter remind us how we used to be.”

By Lisa Zanassi