Tuesday, May 27, 2014

Important Steps Recent Divorcees Must Take

            There are some important steps all recent divorcees must take once their divorce is final.  You must make sure to update all financial entities, employers, insurance providers and others of any name change and/or address change.  Most importantly, you must update any beneficiary information to remove your ex-spouse and designate new beneficiaries.  If you fail to do so, any positive outcomes from the divorce may be negated.  For example, there has been recent national news about a gentleman who recently passed away leaving behind his third wife.  The man had forgotten to remove his second wife as his beneficiary on a life insurance policy despite the fact that he had been divorced from his second wife for over ten years.  Unfortunately for his third wife, the man's policy was paid to his wife from a former marriage, instead of his widow.
            It is also important to have your estate planning documents, such as wills, living wills, power of attorney and other documents updated following your divorce.  Contact Joseph Stafford, 216.241.1074,  for assistance with making sure all of your affairs are in order following your divorce.  

Wednesday, May 14, 2014

Single mothers do not always retain “sole custody” in Ohio.

In Ohio, the father of a child born to an unmarried woman has no legal rights to the child until he obtains a court order granting him parenting time and/or custodial rights.  When a child is born to an unmarried woman, she is the sole residential parent and legal custodian of the child pursuant to Ohio Revised Code §3109.042 .  This is a rebuttable statutory presumption. Single mothers do not always retain “sole custody” in Ohio.

A father must petition a court for parenting time and/or parental rights and to establish paternity.  A juvenile court will the exercise jurisdiction over the parents and the minor child and issue orders that it determines are in the best interest of the minor child.  Depending on the facts of each case, a father may obtain equal rights to make decisions in the life of the minor child (also known as shared parenting).  It is a myth that unmarried fathers will only be awarded “visitation” with their child.  In many cases, fathers are able to obtain shared parenting and equal decision making in regards to their child.

In order to obtain parenting rights to a child born to an unmarried mother, a father must establish paternity.  There are several ways an unmarried father can establish paternity in Ohio.  Paternity may be established by affidavit which is usually done at the hospital time of the child’s birth.  This can also be done later at a local registrar, health department or Child Support Enforcement Agency.   Establishing paternity through the Child Support Enforcement Agency is not usually recommended unless the parents want to start child support proceedings.  If paternity is established via affidavit, the mother’s consent is required, and the father gives up his option to have DNA testing before paternity is established.  This is method is not recommended if the father has any doubts regarding his paternity of the child and can have long-lasting effects if it is later determined that he is not the father of the child. 

Another method to establish paternity is to participate in DNA testing either through the child support enforce agency (which requires the mother’s consent unless the agency initiates child support collection action on its own) or by filing an action in court to establish paternity as part of the complaint to establish the allocation of parental rights and responsibilities (formerly known as custody).  A court can then order paternity testing and the mother’s consent is not required.  This method alleviates any doubt regarding paternity of the minor child at the beginning of any legal proceedings.

It is important to request an order establishing parenting time with the minor child when requesting the court to determine custody as unmarried fathers have no rights to parenting time until they obtain an order from the court.  Ohio law provides that once parentage has been established, a court must consider the mother and father as on equal standing when determining the allocation of parental rights and responsibilities.  Again the court is guided by statutory factors to determine the parenting time of each parent with the minor child that is in the minor child’s best interest. 

Contact Joseph Stafford, 216.241.1074, to further discuss your rights and to determine a plan of action that is best for you and your child.  

Friday, May 9, 2014

Administrative Order Issued By CSEA

Contact our office for legal assistance if the local child support enforcement agency has issued an Administrative Order that you believe is in error.  The child enforcement agencies (CSEA) are governed by the Administrative Code which provides that CSEA shall use the basic Ohio child support guidelines schedule when calculating and/or adjusting child support obligations.  The Code orders that CSEA shall not deviate from the guidelines.  If a deviation is requested by either party, the requesting party must file the request with the appropriate court.

If you believe that the CSEA Administrative Order is based on erroneous information and/or incorrect, it is important to contact an attorney within the timeframe set forth in the Order in order to preserve your right to have the child support determination be reviewed by a trial court.  

To schedule an appointment with Joseph Stafford, call 216.241.1074 or visit Stafford Law Company's web site www.StaffordLawCompany.com

Tuesday, May 6, 2014

Beware of the Dangers of Recordings in Custody Cases

In 1968, Congress enacted the Wiretap Act of 1968 to prohibit all interceptions (and disclosure) of oral and wire communications, except those specified in the Act and to impose civil and criminal penalties for violations of the Act.  Many states have enacted their own wiretap statutes in response to the Wiretap Act.  The Wiretap Act and its state counterparts provide protections against communications (audio, video, and/or other electronic oral communication) such as secretly recorded telephone conversations.  Recordings obtained in violation of the Wiretap Act are prohibited from use as evidence in legal proceedings.

Parents involved in highly contentious domestic relations matters, and most specifically, custody disputes, often are faced with the dilemma of whether they can and/or should record their spouse and/or children.  This dilemma has been further complicated with the fact that some courts have permitted Guardian Ad Litems to consider illegally obtained wiretap evidence in child custody recommendations to the court, circumventing the protections afforded to citizens in the Wiretap Act.  The new technologies available to individuals, such as FaceTime, Skype, and other virtual visitation aides, greatly expand the ability and opportunity for parents to obtain recordings of the other parent to gain an advantage in child custody litigation.  The admission of this type of evidence directly violates the wiretap statute’s exclusionary rules and allows inadmissible evidence in through the back door by permitting Guardian Ad Litems to consider the illegally obtained evidence in making their recommendations.

It is extremely important for divorce litigants to understand the potential liability for illegally recording their spouse and/or their children.  Even if the domestic relations court permits a guardian ad litem to review and consider the illegally obtained evidence in rendering their recommendation to the court for child custody purposes, the liability for violating the wiretap act can extend in civil court.  Although a domestic relations court permitted the use of recordings obtained by a mother in violation of the Wiretap Act, the father in Illinois sued the mother of his children under state and federal wiretap statutes and the court held the mother liable for violating the Federal Wiretap Act.  Lewton v. Divingnzzo, 772 F. Supp.2d 1046, 1050. 

Learn the lesson from Donald Sterling of the L.A. Clippers. Consult with your domestic relations attorney before you subject yourself to civil liability.    

For more information on this topic, or to schedule an appointment with Joseph Stafford, call 216.241.1074 or visit www.StaffordLawCompany.com