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.
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
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.
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!
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.
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.
Why should you be interested in collaborative divorce?
There are many reasons one could be interested in a collaborative divorce. It may be because you are interested in retaining some control instead of giving that control to the Court system. It may be that you want to work in a process that allows for joint problem solving to maximize all potential benefits. It could be because you want to prepare and plan for a future for your children. It may be that you want to keep your financial matters private. It may be that you do not want a high conflict matter where you would prefer to be respectful and focus on the needs of both parties.
What is a collaborative like? What should I expect?
Initially, the parties and their respective collaborative counsel review and sign a written commitment whereby the parties will, through a series of planned team meetings, negotiate a settlement. The parties agree that should they resort to litigation they will no longer be able to have their respective counsel represent them. The parties agree to fully disclose all assets and debts and agree to actively problem solve using interest-based negotiation. There are four steps to the interest-based negotiation model. The first is a transparent and voluntary exchange of information. The second is identifying interests and values. The third step is to generate and create all available options by brainstorming. The final step is to mutually assess the available options and find which best fits. The goal is full resolution.
Ohio passed the Ohio Collaborative Family Law Act in December 2012. This Act recognized the collaborative process as an alternative for couples who no longer wish to be married. It defined the attributes of a collaborative process.
Capacity is a term involving the mental ability to understand one’s actions. Of course, capacity can vary day to day and with new situations. Having diminished capacity can happen for a myriad of reasons, such as an accident, a stroke or even a mental health reason. Sometimes that capacity can be reversed while other times it cannot. It is difficult when a loved one has diminished capacity and wants to make changes to their estate plan as they must made choices regarding their health and financial matters. And each choice requires a certain amount of capacity.
A client must be able to understand a Will or Trust is being made and the client must understand what they have and be able to identify people (family and friends) who would have a claim to their estate and understand their relationship with those people.
To appoint a health care agent, a client must understand the scope of what they are doing in appointing someone to manage their health care. When creating a health care power of attorney, a client just needs to know that they are giving their power to someone else to make health care decisions on their behalf.
The topic of transferring real property comes up often in my estate planning practice. A typical scenario is when a trust is created for a couple or a single person and we choose to transfer the real property via a quitclaim deed into a trust. The question that arises is, “what happens to our title insurance policy?” The question at hand is whether the transfer of property via quitclaim deed invalidates the title insurance policy that the client already has in place on their real property. The answer is no, it does not so long the person who quitclaims the property into the trust is also the settlor (the person who creates the trust) of the trust. If the owner quitclaims the property into a trust where they are not the settlor then then will have to file a Form 107.9, which is a title insurance endorsement that amends the existing title insurance policy by adding an additional insured to the coverage.
If you have any questions regarding estate planning issues, please contact Anna M. Petronzio. email@example.com, 216-381-3400.