Archive for the ‘Family Law’ Category
September 13, 2011
There are a number of reasons why a parent may what to change her child’s name. The most common situation that I have seen is that either a father has or has not been involved in the child’s life, and for that reason the mother wishes to change the child’s last name.
In order to change your child’s name, an application would need to be filed with the Probate Court in the county that the child has resided in for at least one year. On the application, the applicant will have to state the reasons for the requested name change and the requested name. Notice of the application will have to be given to the non-consenting parent and a hearing would be scheduled before a Court Magistrate.
The standard the Court would be applying in reviewing the application is reasonable and proper cause for the name change. In determining whether there is a reasonable and proper cause for the name change, the Court would have to consider the best interest of the child. When considering whether to change the child’s last name, the Court will take into consideration the following factors:
- the effect of the change on the preservation and development of the child’s relationship with each parent;
- the identification of the child as part of a family unit;
- the length of time that the child has used a surname;
- the preference of the child if the child is of sufficient maturity to express a meaningful preference;
- whether the child’s surname is different from the surname of the child’s residential parent;
- the embarrassment, discomfort, or inconvenience that can result when a child bears a surname different from the residential parent’s;
- parental failure to maintain contact with and support of the child;
- and any other factor relevant to the child’s best interest.
If you have questions regarding applying for a child’s name change or having representation in the proceedings, seek out a probate lawyer.
Elizabeth L. Perla, Esq.
Law Offices of Randall M. Perla
Cleveland Probate Attorneys
19443 Lorain Road
Fairview Park, Ohio 44126
Phone (440) 333-2503
Fax (440) 333-9650
perlalaw@wowway.com
www.randallperla.com
September 12, 2011
When is child support owed?
Parents are responsible for supporting their children. However, until a child support order is established by CSEA, the Child Support Enforcement Agency, or the Court, there is no way to enforce that obligation. If you are the residential parent of a child and you wish to have the other parent support your child, you need to establish an order. An order can be established through CSEA or through the Court. If you establish child support through CSEA, the Child Support Enforcement Agency, then child support will commence at the time the Order is goes into effect. If you establish child support through Court, then child support will commence at the time of filing.
How can I receive retroactive child support?
Often residential parents would like the other parent to pay support prior to the issuance of the Child Support Order. Retroactive child support is available with several exceptions. First, retroactive child support must be requested at the time paternity is established. If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request retroactive support. Moreover, retroactive child support is not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.
How can I receive my pregnancy and confinement (postpartum) costs from the child’s father?
The same rules that apply to retroactive child support apply to pregnancy and confinement (postpartum) costs. First, the costs must be requested at the time paternity is established. If paternity and child support are established through CSEA, the residential parent must object to the child support order with juvenile court in order to request the costs. Moreover, pregnancy and confinement (postpartum) costs are not available if at the time it is requested, the child is over three years of age and the father had no knowledge and had no reason to have knowledge of his paternity prior to the filing of the action. In order to show knowledge of paternity, the Mother must be able to show that she made a reasonable effort to contact and notify the father of his paternity.
For more information on establishing a Child Support Order,establishing Paternity, requesting retroactive Child Support or pregnancy and confinement (postpartum) costs, consult with a Child Support Attorney.
Elizabeth L. Perla, Esq.
Law Offices of Randall M. Perla
19443 Lorain Road
Fairview Park, Ohio 44126
Phone (440) 333-2503
Fax (440) 333-9650
perlalaw@wowway.com
www.randallperla.com
Cleveland Child Support Attorneys; Cleveland Retroactive Child Support Attorneys; Domestic Relations; Family Law; Interstate Support; Paternity; Child Support; Fathers Rights; Juvenile Law
July 27, 2011
First, in order for a grandparent to be able to file a motion for custody or visitation with the Court, one of the following three circumstances must be present:
- The child’s parents are unmarried.
- The child’s parents are going through a divorce, dissolution of marriage, legal separation, annulment or child support proceedings.
- The child is involved in an abuse, dependency, or neglect case.
How can a Grandparent Obtain Custody of a Child?
Obtaining custody of a grandchild can be very challenging because the Courts consider the right of parents to care for their children a fundamental right.
The U.S. Supreme Court held in Troxel v. Granville, that the parents’ right to the custody of their children is paramount to any custodial interest in the children asserted by a non-parent, including a relative like a grandparent. However, there are three ways in which parents can lose their paramount right to care for their children.
- The child can be adjudicated an abused, neglected, or dependent child by the Court.
- A parent can relinquish custody of the child through an agreement or contract.
- A parent can be found by the Court to be unsuitable to care for the child.
Once one of the above criteria is met, the Court will then determine whether it is in the child’s best interest for a third party, like a grandparent, to be awarded custody.
This high burden can be very difficult for many grandparents to understand, especially if they have provided substantial care for their grandchildren or even cared for their grandchildren exclusively for many years due to a child’s drug use or indifference or other circumstances.
Although the burden is high, it is not insurmountable and every case is different. If you are seeking custody of your grandchild, it is best to discuss your situation with a family law attorney.
How can a Grandparent Obtain Visitation Rights?
Once a motion for visitation rights is filed with the Court, the court will grant grandparent visitation if it determines that it is in the best interest of the child. When determining whether it is in the child’s best interest, the court will consider the following factors:
- The prior interaction and interrelationships of the child with the grandparents;
- The geographical location of the grandparents’ residence and the distance between the grandparents’ residence and the child’s residence;
- The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
- The age of the child;
- The child’s adjustment to home, school, and community;
- The wishes and concerns of the child;
- The health and safety of the child;
- The amount of time that will be available for the child to spend with siblings;
- The mental and physical health of all parties- grandparents, parents and child;
- The willingness of the grandparent to reschedule missed visitation;
- Whether the grandparents have been previously convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication;
- The wishes and concerns of the child’s parents, which must be afforded special weight by the Court;
- Any other factor in the best interest of the child.
If you are considering filing for visitation rights with your grandchildren, it is advisable to consult with a family law attorney.
Elizabeth L. Perla, Esq.
Law Offices of Randall M. Perla
19443 Lorain Road
Fairview Park, Ohio 44126
Phone (440) 333-2503
Fax (440) 333-9650
perlalaw@wowway.com
www.randallperla.com
Cleveland Family Law Attorneys
Cleveland Domestic Attorneys
Cleveland Grandparents Custody Rights Attorneys
Cleveland Child Custody Attorneys
Cleveland Visitation Rights Attorneys
Cleveland Grandparents Visitation Rights Attorneys
July 25, 2011
Several weeks ago, the Ohio Supreme Court issued a decision in In Re Mullen; Hobbs v. Mullen, et. al. involving the parental rights of a same sex couple. The lesson for same sex parents is as follows. GET IT IN WRITING.
In the case, Michele Hobbs and Kelly Mullen, a same sex couple, decided to have a child. A male friend agreed to donate his sperm and Mullen became pregnant through an in vitro fertilization procedure.
The women acted as co-parents. The women shared the financial responsibility of the in vitro fertilization process, Hobbs was present when Mullen gave birth, the women created a ceremonial birth certificate listing both of them as the baby’s parents, Mullen executed a will, naming Hobbs the guardian of the child, as well as a health care power of attorney and general durable power of attorney for the child, naming Hobbs as the child’s agent. Mullen acknowledged that she considered Hobbs to be the child’s co-parent in each document.
The custody issues began when the couple broke up after several years. Mullen moved away with the child and Hobbs filed a complaint for shared custody and a motion for visitation with the Court.
The question before the Court was whether the conduct of Hobbs and Mullen created an agreement for permanent shared legal custody of the child. In Ohio, a parent can give up his paramount right to custody of his child through a contract or agreement. The Court found that there was no such contract in this case, despite the actions of the couple indicating an intent to co-parent. The Court went on to state that the best way to safeguard the custodial rights of the non-genetic parent would have been to create a written agreement or contract that stated how custody was to be shared and the degree to which it would be revocable or permanent.
Bear in mind, however, that even if the Court had found that Mullen gave up her paramount right to custody of the child, the Court would still need to decide whether Hobbs was a suitable person to be a custodian of the child or whether shared legal custody was in the child’s best interest, in order for Mullen to have been granted custodial rights.
Takeaway- Before becoming parents, same sex couples should have an agreement drafted which specifically states that the genetic parent acknowledges his or her paramount right as a parent and permanently relinquishes that right and specifically how custody is to be shared during the relationship and upon the event of the couple breaking up. Due to the importance of this document, it would be a good idea to have a lawyer draft it. Same sex couples may also wish to explore a cohabitation agreement in regard to property division in the event of the couple’s separation. See http://www.randallperla.com/cohabitation.html
Elizabeth L. Perla, Esq.
Law Offices of Randall M. Perla
19443 Lorain Road
Fairview Park, Ohio 44126
Phone (440) 333-2503
Fax (440) 333-9650
perlalaw@wowway.com
www.randallperla.com
Cleveland Family Law Attorneys
Cleveland Same Sex Parents Attorneys
Cleveland Same Sex Couples Attorneys
Cleveland Cohabitation Agreement Attorneys
June 30, 2011
If you and your spouse are unable to divide your property via a Separation Agreement in a Dissolution of Marriage or Settlement Agreement in a Divorce proceeding, the Court will need to do it for you. In order divide your property, the Court will go through the following steps.
First, the Court will determine which property is separate property and which is marital property.
Separate property means any of the following: an inheritance received by a spouse during the marriage; any property acquired by a spouse prior to the date of marriage; passive income and appreciation acquired from separate property by one spouse during the marriage; property acquired by a spouse after a decree of legal separation; property excluded by a valid antenuptial (also known as prenuptial) agreement; compensation to a spouse for personal injury (with the exception for loss of marital earnings and compensation for expenses paid from marital assets); any gift made after the date of marriage that is proven to have been given to only one spouse. Moreover, in order to be awarded a spouse’s separation property, he or she must be able to trace the property to its separate source.
Marital property means any of the following: any property owned by either or both of the spouses that was acquired during the course of the marriage unless it falls into one of the categories of separate property; all income and appreciation on separate property that occurred during the marriage as a result of labor, money, or in-kind contributions.
Once the Court has determined which property is marital and which is separate, the Court will divide the property equitably between the spouses. Usually this means an equal division of marital property and an award of the separate property to its respective owner. However, if the Court determines this would not be an equitable outcome, it can divide the marital property in an unequal fashion and award a spouse’s separate property to the other spouse.
The Court must consider a number of factors when making the property division including: the duration of the marriage; the assets and liabilities of the spouses; the desirability of awarding the family home or the right to reside there for a reasonable period of time to the spouse with custody of the children; the liquidity of the property to be distributed; the economic desirability of retaining intact an asset or an interest in an asset; the tax consequences of the property division; the costs of sale, if it is necessary that an asset be sold; any retirement benefits of the spouses; any other factor that the court finds to be relevant and equitable.
One reason why the Court may decide to award a spouse’s separate property to the other spouse is if it determines that a division of the marital property would be impractical or burdensome. Another reason the Court may award separate property to the other spouse or award a greater than equal amount of marital property would be if a spouse engaged in financial misconduct, like dissipating, destroying, concealing, not disclosing or fraudulently disposing of assets.
As you can see, there is no sure thing in terms of property division in a divorce. Although the presumption is that separate property will be awarded to its separate owner and marital property will be divided equally, there is a lot of room within Ohio law for the Court to order otherwise. In addition, in order to be awarded separate property, you have to be able to show that it is separate by tracing it to its separate source. For these reasons, it is wise to be represented by an attorney.
Elizabeth L. Perla, Esq.
Law Offices of Randall M. Perla
Cleveland Divorce Attorneys
19443 Lorain Road
Fairview Park, Ohio 44126
Phone (440) 333-2503
Fax (440) 333-9650
perlalaw@wowway.com
www.randallperla.com
Domestic Relations; Family Law; Divorce; Alimony; Marital Agreements; Marital Property Distribution; Marital Property Law; Marital Property Settlements; Matrimonial Law; No Fault Divorce; Qualified Domestic Relations Orders (QDROs); Restraining Orders; Uncontested Divorce
