Monthly Archives: May 2021

What is a Guardian ad Litem?

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A Guardian ad Litem (GAL) is a person that gets appointed by the court to make a recommendation as to the child’s best interest. In some counties in Ohio, only attorneys act as GALs. In other counties in Ohio, people volunteer to act as GALs through the CASA (court-appointed special advocate) program. Either parent can request a GAL, or the court can appoint a GAL on the court’s own motion.

Once the GAL is appointed, they will contact both parents to set up a home visit and begin their investigation. The GAL will speak to each parent, the child, any siblings, the child’s teacher, and the school administration. The GAL reviews records, speaks with other family members, watches the child’s interaction with both parents, and provides the court with a written report that provides detailed information about their investigation. The GAL report will also make a recommendation regarding what is in the child’s best interest.

The GAL will testify in court regarding their report, and the court will consider the GAL’s recommendation when issuing the final order.

Why People Should LOVE Collaborative Law

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Collaborative law is totally outside the courtroom, except for agreed upon mandatory filings necessary for a dissolution filing. The basic elements of collaborative law are as follows:

  • There is a written agreement (collaborative contract) signed by clients and lawyers whereby they agree none will make use of the court process during the collaborative process.
  • Parties use good faith problem-solving skills to obtain an end result for the parties.
  • Neither party may participate in any litigation against the other party/client after signing on as the collaborative attorney.
  • Collaborative lawyers are essentially fired if one of the parties/clients chooses to litigate instead of using the collaborative process.
  • Each party has their lawyer by their side and actively participates in all the collaborative meetings.
  • Experts may be retained and when they are, they act as neutrals and they are also barred from participating in litigation.

While collaborative law may initially seem similar to mediation as it is both interest-based, it is not the same thing. Collaborative lawyers are advocates and not neutrals as in the mediation process. Collaborative attorneys learn constructive methods of assisting clients to advocate and prioritize the needs of the parties. It also differs as the risk of failure is equalized to the lawyers as well as the clients. If one of the clients chooses to litigate then the collaborative lawyers are no longer needed and, therefore, effectively “fired”. The is an added incentive to all the parties to become effective problem solvers.

The benefits of collaborative law are many and they include:

  • Privacy and confidentiality
  • The ability to be creative in the final settlement
  • Ability to focus on children and “think outside the box”
  • Keeps cases out of the courtroom
  • Clients have control over the process

How is Parenting Time Decided?

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In Ohio, one parent can have sole custody or the parents can share parenting time. In a sole custody arrangement, one parent decides on everything from medical care to decisions regarding the child’s school. In shared parenting, both parents can make decisions for the child.

When determining whether sole custody or shared parenting will be ordered, the courts consider what is in the child’s best interests. There are several factors that the court considers when making that decision, including the following: each parent’s wishes and the wishes of the children; how the children feel about each parent’s home and community; if either parent has withheld the children from the other parent; whether the parents can communicate with each other regarding the children; and the recommendation of a guardian ad litem.

The court will typically have a model visitation schedule, in which the children live with one parent most of the time, having parenting time with the other parent every other weekend and additional days during the week.

Parents can agree on a different schedule than the court’s model visitation schedule if they find that there is a schedule that works better for their family, such as spending one week with the mother and the following week with the father.

The court’s model visitation schedule can be found on the court’s website, and the Ohio Supreme Court has some model visitation schedules available to review.

Written by Karen Hummel at KarenHummelLaw.com.

I always urge clients to FUND THEIR TRUSTS

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Advising clients to use a trust as an estate planning tool is ordinary in my practice. I also urge my clients that just having a trust is ineffective unless it is properly funded. Just signing the trust is not enough. In order for the trust to be effective the Trustee must hold title to the assets in the trust. When clients do not retitle the assets into the name of the trust it really defeats one of the purposes of having a trust.

One main purpose of having a trust is to avoid probate and all the expenses and costs associated with probate. I advise clients to fund their trust as soon as it is created, and I usually assist them with transferring their real property. Many clients are able to transfer their checking and savings account, their wealth management accounts and cars without assistance from me. Don’t forget to properly fund your trust!

2 good enough reasons to create a trust

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You don’t need a trust just for the tax benefits. There are other reasons, such a probate avoidance/privacy and protecting young beneficiaries. Probate is a formal process where a decedent’s property is administered and distributed. Probate is public and there is no privacy. Additionally, there are unneeded expenses. While avoiding probate is important, asset protection is more important. In probate, assets could pass to young individuals who may be over 18, but not able to handle assets and the responsibilities of an inheritance.

A trust can be drafted to protect the individual many years beyond 18 years of age, and still allow the beneficiary to receive distributions for health, maintenance, and education, but still protect the assets held in the trust. There are so many more reasons to use trusts for one’s estate plan, but PRIVACY and PROTECTION are enough to allow one to take note of their importance.

COVID 19 & Estate Plans

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One thing I discovered during the pandemic is many people realized that they were not going to live forever, and they needed an estate plan. COVID 19 did not make planning and executing estate plans easy. Many high-risk workers and essential workers were eager to get their plan in place. Many older people wanted to implement changes in their current estate plans. Accomplishing document signing during the pandemic has proved challenging as Wills require two disinterested adult witnesses and power of attorney for health care and living wills do not require witnesses if the documents are signed before a Notary Public. I became creative in helping my clients sign their estate planning documents while adhering to COVID protocols.

COVID-19 has highlighted the necessity of a well-thought-out estate plan. At the same time, the pandemic has made it more difficult for clients to get these documents that are necessary in place. I have attempted to be creative in solving this current problem while also maintaining “social distance”. Under Ohio law, a Will must be signed in the physical presence of two disinterested adult witnesses. Other estate planning documents, such as Living Wills or Durable Power of Attorney for Health Care do not require witness so long as the documents are signed in front of a notary public. Ohio has not created any new legislation during the pandemic that would change Ohio’s in-person witnessing requirement, even though electronic Will witnessing is under review. In 2019 Ohio allowed for Ohio notarizations to be performed electronically by special authorized online notaries. Some attorneys are witnessing the documents outside or even reviewing the documents via Zoom and then having the clients obtain their own witnesses.