What are guardianships and how are they important?

A guardianship is a legal arrangement in which a court appoints a person, known as a guardian, to make decisions and take care of another person, known as a ward, who cannot care for themselves. Guardianships are typically established for individuals who cannot make decisions for themselves due to factors such as age, disability, or incapacity. There are two types of guardianships; Guardianship of the person and Guardianship of the estate A guardianship of the estate is a person who is responsible for the day-to-day care and well-being of the ward, while a guardian of the estate is responsible for managing the ward’s financial affairs.

Guardianships are important in several ways:

  1. They protect individuals who are unable to make decisions or care for
  2. They ensure that the ward’s physical and financial needs are met by appointing someone to
    manage their care and finances.
  3. They can help with financial exploitation or abuse of the ward by having someone with legal
    authority to manage their financial affairs.
  4. They help with decision-making for the ward as the appointed guardian acts as a substitute
    decision maker for the ward.
  5. They can help with the continuity of care as the ward can continue to love in familiar
    surroundings or with familiar people.
  6. Guardianships are typically established through the probate court and can be costly, so it is
    important to consider if there are alternative options such as powers of attorney, trusts, or living
    wills before seeking guardianship.

What are the factors the court will consider for child custody?

When a court is determining child custody in a divorce matter, the primary consideration the best interest of the children. The court will consider a variety of factors when making a determination, including,

  1. The child’s relationship with each parent; this includes the child’s emotional, physical and
    physiological relationship with each parent.
  2. The child’s preference is the child if old enough and has the ability to express a preference, the
    court will take that into consideration.
  3. The parent’s ability to provide for the child’s emotional and physical needs, such as parent’s
    income, employment and living situations.
  4. The parent’s ability to co-parent which includes the ability to work together to make decisions
    and communicate effectively.
  5. The child’s stability and continuity; the court will consider the child’s current living situation and
    the continuity of that situation in regard to education, relationships and community.
  6. The child’s safety; the court will consider if there is any history of abuse or neglect by either
  7. The parent’s moral fitness; the court will consider any history of criminal activity, drug or alcohol
    abuse or any other behavior which may put the child at risk.
  8. The parents; work schedule and availability to care for the child.

It is important to note that these are not the only factors the court will consider, and the weight given to each factor will vary depending on the specific case. Additionally, the court may also consider any other relevant information that may be presented to them.

Working through the Unthinkable: Obtaining a Domestic Violence Civil Protection Order

Asking a court to issue an order of protection is one of the last things anyone wants to think about; however, if you or your loved ones are involved in an abusive or otherwise dangerous relationship, it is important to know to whom to turn for help. You can call the police to report an act of violence, but how do you keep the perpetrator away?

Domestic Violence Civil Protection Orders (DV-CPO), pursuant to Ohio Revised Code 3113.31 are issued by the Court of Common Pleas, Domestic Relations Division, when the parties involved are family or household members. You can seek an order of protection for yourself, your children, or on behalf of any family or household member in one of three counties – where you (the Petitioner) reside, where the Respondent resides, or in the county where the incident occurred.

Who qualifies as a family or household member? Pursuant to Ohio law, a family or household member can be a person who is residing or has resided with the Respondent at some point in the past. This can include a spouse, a former spouse, a foster parent, a child, or any other person related by love or affection to the Respondent. A family or household member can also be a person living as a spouse with the Respondent. In order to determine if you are “living as a spouse,” courts will look at factors such as whether you are currently living with or have lived with the respondent in the past five years, whether you had a common law marriage until October 1, 1999, whether you were involved in a same- sex relationship, or if you were involved in an intimate relationship with the Respondent while sharing family and/or financial responsibilities. A family or household member could also be someone who had never resided with the Respondent, but who shares a child with him or her.

Domestic Violence Civil Protection Orders are issued in response to violent threats or acts. This could include domestic violence, assault, felonious assault, any sexually oriented offense, or any other attempt to cause bodily harm. It also includes threats which place you in fear of imminent physical harm. It is not required that criminal charges be filed, but you must be able to substantiate the claims that you are making with evidence.

Once you ask the court for the DV-CPO, an ex parte hearing is held on the day of the filing. An ex parte hearing means that you present the evidence you have to the judge or magistrate, but the Respondent is not present at the hearing. A magistrate may conduct the hearing and grant or deny the DV-CPO without requiring the judge’s approval for it be final. If your request at the ex parte hearing is granted, the Order is effective once signed and filed with the clerk, but only until the expiration date. The matter will then be set for a full hearing, so the Respondent has a chance to be heard.

DV-CPOs are designed to ensure the safety and protection of all protected parties. To that end, they can offer many different types of relief. They can evict Respondents and give exclusive use of the family home to the protected parties, temporarily allocate parental rights and responsibilities, require the Respondent to maintain support for the protected parties or the children, prohibit the Respondent from going near the parties, require the Respondent to seek counseling, or any other relief that the court determines is equitable and fair. Another important form of relief DV-CPOs offer is a firearms disability notice, prohibiting the Respondent from using or possessing any firearms. If the Respondent violates the Order, he or she could be found in contempt of court or even be prosecuted for the violation.

DV-CPOs are typically good for a period of five years, unless a sooner expiration date is sought; however, they are renewable in the same manner that the original was issued or approved.

Article contributed by Stephanie Anderson

What is a Guardian ad Litem?

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.

How is Parenting Time Decided?

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.

Can I transfer my property via a quitclaim deed into my trust without affecting my title insurance?

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. apetronzio@ps-law.com, 216-381-3400.

Dynasty Trusts: is this a trust for you, your children and …?

Dynasty Trusts: is this a trust for you, your children and your great-great-great grandchildren?

For whatever reason I have had a bunch of clients ask me about dynasty trusts this week. So, I thought that might be “a sign” that I should write an article about it. I suppose a good place to start is by defining what a dynasty trust is and what it does.

A dynasty trust is a long-term irrevocable trust created to pass wealth from generation to generation without incurring transfer taxes such as the gift tax, estate tax and generation-skipping transfer tax so long as assets remain in the trust. The defining characteristic is the duration of the trust and can be drafted to last for multiple generations, so long it does not violate the Rule of Perpetuities, if this rule exists in your jurisdiction. Thank you, Suffolk Law- Wills and Trusts. On to what a dynasty trust does. A dynasty trust mitigates the impact transfer taxes, helps shield your wealth from creditors and money grubbing soon-to-be ex-spouses and the bad choices of your future beneficiaries. It also helps ensure your assets are invested for the benefit of your children, grandchildren and future generations. This all sounds great, right? What are the downsides, you ask? The first potential downside is you have to choose the rights assets to place in a dynasty trust, such as life insurance, tax-exempt bonds, real estate or an asset that offers high potential appreciation and little to no transfer tax. Since income created within a dynasty trust is taxed more heavily it makes sense to place assets into the trust that are non-income generating. In addition, the trust is irrevocable, so once you (the grantor) places the assets into the dynasty trust there is no turning back or changing your mind as the grantor does not have the right to revoke or even to amend the trust. That is a biggie. Also, the trustee should be a professional trustee as they are usually given some discretionary powers to distribute income and/or principal to the beneficiaries and using a pro allows there to be consistency in the administration of the trust, especially as this trust is supposed to be for the long haul. Moreover, the trustee must follow strict rules to qualify for the annual exclusionary gifts for any dynasty trust that contains life insurance. If trustee fails in his/her duties of properly sending out a Crummey Letter the result could be expensive. Finally, the question I ask is whether it is your intention to shackle your children so that you could preserve wealth for your future great-great-great grandchildren? Maybe you just are thinking about your children or even grandchildren. Of course, dynasty trusts have a time and place and just the right grantor, but the question remains is whether this trust is right for you.

If you have any questions regarding estate planning issues, please contact Anna M. Petronzio. apetronzio@ps-law.com, 216-381-3400.

Determining High Income Child Support

Why is the answer to, “What will I have to pay in child support when my income and my spouses’ income is more than $150,000 combined?” not so easy?

One of the first questions I get from potential clients and clients alike is, “How much will I have to pay in child support?” and “How much will I get in child support?” Ordinarily, the answer is easily obtainable by a calculation using the Ohio Child Support Guidelines Worksheet which applies statutory guidelines set forth by the Ohio Revised Code Section 3109.021. The basic information used for child support calculations includes each parties’ income, the parent’s work-related child care expenses, health insurance premiums incurred for the minor children, the local income taxes paid by each parent, and whether any other child support or spousal support is being paid or received by either party. “Running the child support is not rocket science” is the phrase I usually use, until the combined gross income of the parties is $150,000 or more. When calculating high income child support the trial court must determine the income of both parties. Once the income is determined, the incomes are them combined for the purpose of applying the child support guidelines. If the calculation yields an amount more than $150,000, then the income qualifies for the “high income” child support. The trial court must then determine in each individual case what child support amount is in the best interests of the minor children. The court must look at the life style of the children, if there are any special needs and the incomes of the parents. The “extrapolation method” is then used. What is the “extrapolation method” you ask? In Cummin v Cummin the Fourth Appellate Court in Ohio (12-21-2015) upheld the trail court’s ruling in extrapolating the child support income and imputing income to a doctor. The Court of Appeals exhaustively analyzed how to calculate child support where the parent’s combined income was more than $150,000. The trial court made an initial determination and attached to the original divorce decree a child support guideline worksheet basing the support on the parties’ actual income, rather than capping the income to $150,000 for purposes of calculating the support. At the time the parties’ income was over $300,000. The court used the extrapolation method. Three years later the trial court modified its previous award of child support again using the extrapolation method. Since the Appellant did not originally object to the trial court’s method, the court deemed it was improper for him to raise the objection for the first time. Too late, buddy, but I am not sure the objection would have made a difference. The Appellate court further stated that even if the argument is not waived, the trail court was within its’ discretion (both statutorily and case law wise) to either cap the income at $150,000 or use the parties’ actual income when crafting a child support order. Case by case. Since there is no statutory calculation for child support on “high income” parties the broad discretion has resulted in a wide variety of child support orders, even when the facts of the case seem very similar. Like I said, not such an easy question to answer.

If you have any questions regarding domestic relations/ family law matters, please contact Anna M. Petronzio, apetronzio@ps-law.com, 216-381-3400.

Considering a Prenuptual Agreement?

Have you ever heard about the bride who is given a prenuptial agreement moments before walking down the aisle to get married? Many people believe that the agreement given to her moments before she takes her vows of marriage would hold up in Court. Me, not so much.

A prenuptial agreement which is also referred to as an antenuptial agreement is an agreement between two parties contemplating marriage that alters or confirms the legal rights and obligations they would otherwise have under the laws that govern marriage that end in either divorce or even in death. These agreements are charged with controversy as to their enforceability. This area of law is complex area and encompasses family law and estate planning. All fifty states recognize prenuptial agreements in one way or another. There are technical requirements of the agreement. They must be in writing and they must be signed by both parties. Generally, parties to a prenuptial agreement must have had the opportunity to consult with legal counsel. I believe this is super important and one of the pillars of enforceability. The more time the parties negotiate the terms with their counsel the greater likelihood the agreement will hold up. There must be full financial disclosure and the agreement must be signed before the marriage. The closer the agreement is signed before the marriage the more likely it is to be challenged. Personally, I will not take on a matter unless the parties are at least four months from marriage as I recognize there will be time spent to negotiate, draft and review a prenuptial agreement and signing one on the eve of marriage makes it a pretty weak agreement. Obviously, there must be a marriage subsequent to the execution of the agreement. There are some public policy limits, such as attempting to limit the number of children born in the marriage. Also, provisions in the agreement regarding child custody are not usually enforceable. There are also fairness standards. What constitutes fairness depends on the circumstances of the agreement and are called Button standards, after the case Button v. Button. The standards are as follows: objectives of the parties, economic circumstances of the parties, the property owned by each party before the marriage, the existence of other family relationships and obligations, each party’s income and earning capacity, anticipated contributions of each party to the marriage, the health of the parties, education and professional goals of the parties, including expectations that one party will contribute as homemaker and parent.

Many times the questions I ask before I take on a prenuptial matter are and if the answer is not “yes” I am unlikely to take on the case.

  • Is there enough time to negotiate, draft, review and sign the agreement so that no one is unduly pressured?
  • I require both parties to hire attorneys, so has the other party hired an attorney?
  • Are the parties willing to bring in their accountant to review their taxes and finances?
  • Are the parties willing to use a valuation expert to value real estate and businesses?

Many times the agreement covers not only divorce but death. Usually, this is where family law and estate planning attorneys must work together.

If you have any questions regarding domestic relations/ family law matters, please contact Anna M. Petronzio, apetronzio@ps-law.com, 216-381-3400.