Planning for the Future / Dealing with the Past
Many of my "Can she DO that?" phone calls start out the same way. Never-married parents who have had a falling out go their separate ways and the mother takes the child with her. For weeks or months, things seem fine. Father is allowed to visit the children - perhaps even take them for days or weeks at a time. Suddenly, something changes and the mother won't allow the father to take the child out of her sight. In some cases, she won't allow access even under her watchful eye.
"Can she DO that?" the distressed father asks. After finding out more about the situation and checking off the boxes:
- Never married
- No court-ordered parenting time
My answer is, "Yes, she can do that - for now."
Ohio Revised Code Section 3109.42(A) says:
An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian. A court designating the residential parent and legal custodian of a child described in this section shall treat the mother and father as standing upon an equality when making the designation.
In layman's terms, an unmarried woman who gives birth is that child's sole legal custodian until the father legally establishes paternity and files for allocation of parental rights and responsibilities. This applies even if the mother has filed for child support and father is current in his payments. This applies even if the couple has lived together for years and raised the children together without a marriage certificate.
The second part of that section of the Ohio Revised Code is important, too. It says that when the father seeks an order granting him parental rights and responsibilities, the court must not give the mother special favor in this situation. From a practical viewpoint, however, the longer the mother is the child's primary caretaker and the longer the father waits to take action, the stronger the mother's case is that she should continue to be the primary caretaker.
There are people who seem to be able to make informal custody arrangements work for their situation. When that is the case, my advice to them is to formalize their agreement while they are still in agreement and working cooperatively. A Shared Parenting Plan or other parenting order puts in place a default schedule that will come into play if the parents are no longer able to agree. The parents are still able to make flexible arrangements for their child as long as they agree what is in their child's best interest.
This is the third in a series of articles that will discuss common questions about child-related issues. If you have found this article useful, I hope that you will consider subscribing to my blog at https://ohiodivorcesource.com/blog/ so that you will receive future posts.
This article is shared for educational purposes only. It is not intended as, and it no no substitute for a careful reading of your individual court document and advice from an attorney who has actually read your documents. No attorney-client relationship is intended to be created by sharing this information. Attorney Burley is not your lawyer unless you have both signed an agreement and paid any required fees or retainer.
I had every intention of writing this post last week, but time didn't allow it. Still, the information is valuable, and I hope that if you are co-parenting a child with someone with whom you are no longer in a relationship, you will take this to heart.
No Extraordinary Measures
I’m not sure where the phrase “NO EXTRAORDINARY MEASURES” originated, but I wish that it would go away because it doesn't really tell us anything. Talking about death is difficult under any circumstances. It’s even harder (at least to me) when one is staring the death of a beloved person in the face.
It was in the news media yesterday that former First Lady Barbara Bush has decided to stop treatment for the serious health problems that she faces. I have long admired Mrs. Bush. I am sad that she is at the end of her long and inspiring life. I am grateful that she chose to share this news, because it opens a door to an important topic: "Do your loved ones know your wishes if you are unable to speak for yourself?"
There are a many important documents in my “lawyer tool chest.” The Advance Directive (Ohio Living Will) and Health Care Power of Attorney are among the “top 4” that I believe that every person should have.
The “Living Will” doesn’t talk about who gets your money and who is to receive Great Grandma’s tea set – it is a document that you can use to tell your family and your health care providers about what you would choose for yourself so that nobody has to guess – or fight – if you are unable to communicate your own wishes. The Health Care Power of Attorney appoints a trusted friend or family member to make those decisions for you if you cannot make them yourself. The two documents go hand in hand.
When I write a Last Will and Testament (the document that does advise where Great Grandma’s tea set is to go), I talk with my clients about the importance of the “other kind of will.”
In order to fill out an Ohio Living Will properly, you need to think about potentially painful topics. You need to put yourself into an imaginary sick bed and think about what you believe would be important to you when death is near.
The Hospice of the Western Reserve has put together a wonderful publication that includes a list of questions that can help you to decide what instructions to leave for your medical team and the person who you name in your Health Care Power of Attorney. (Note – the actual forms included in this publication are not the newest forms – you should use the updated forms which can be provided by your attorney. )
These questions ask about what things are important to you, such as whether it is more important to be pain free or more important to be able to communicate, and whether life in a wheelchair would be an acceptable outcome.
I encourage anyone who reads this post to print out the publication and thoughtfully answer the questions on the pages that are headed “Preparing for the Conversation.” Once you have answered the questions, schedule a time to have the difficult conversation with your health care agent.
If you have been appointed to speak for someone else in their Healthcare Power of Attorney and you can’t answer those questions about your loved one, it’s important that you try to have a conversation that will allow you to answer those questions.
I had those conversations with my parents when each of them received their initial cancer diagnosis. I learned that “no extraordinary measures” means different things to different people. For my dad, it meant that he didn’t want to be kept alive on life support, but he wanted any treatment option, no matter how small the chance of recovery. Knowing that, I made the decision to remove a respirator from him twice . Mom’s death is much more recent and harder to talk about. I’ll just say that in the end, I honored her wishes, and I was so grateful to know what they were.
The Hospice of the Western Reserve publication can be found here: http://www.hospicewr.org/news-and-media/Documents/B44-25_CourageInConversation_Web.pdf#search=directive
Again, this publication contains outdated forms for the Ohio Living Will and Healthcare Power of Attorney. As of this writing, the newest form was updated in August 2016.
Attorney Betty Burley studied end of life issues as an undergraduate in Psychology at Cleveland State University and again as a law student. Attorney Burley is available to speak to your senior citizen group or service club about the importance of these documents and the conversation that goes with them.
To schedule a time to have these documents drawn up for yourself, call 440-967-1529 to schedule an appointment at a time that is convenient for you. Online scheduling is available at www.burleylaw.com
In cases where there are no children still living at home, division of assets can be one of the most emotionally-charged topics in approaching a divorce. Sometimes both spouses have a strong attachment to an assets – such as a beach house where they spent many happy summers, or a retirement savings account that one partner contributed to over many years while the other partner spent money in a “frivolous” manner.
Sometimes a potential client believes the asset rightly belongs to him or her because of the name on the deed, title or account. The law doesn't see it that way.
Ohio is an “equitable distribution” state, which in a nutshell means that we divide assets (and debts) equally unless it would be fair and equitable to do otherwise. That doesn’t mean that the frugal spouse keeps the 401(k) because it’s “fair!” What it might mean is that one spouse settles for less than exactly half because he is taking on more of the debt, or the person keeping all of the equity in the home will not be receiving spousal support.
REAL ESTATE – Where one spouse is keeping a piece of real estate such as home, he or she typically take on the liability for the mortgage on that property. If both partners are liable on the mortgage, the person keeping the property will likely need to refinance to remove the other person’s name from the debt. If there is equity in the home (it is worth more than the mortgage balance) then the person walking away is typically entitled to a fair share of the equity. This may require the parties to pay for a real estate appraisal. The name or names that are currently on the deed have little meaning unless one of the partners owned the property when the two married. Where that is the case, there may be a separate property claim that would entitled the spouse who owned the property to more or even all of the equity in that property.
RETIREMENT ACCOUNTS AND PENSION – Although the law is clear that the funds accumulated during the marriage and the earnings on that portion of the funds are marital property to be divided, this is often a difficult part of the case. The spouse who worked 20, 30 or 40 years sees his sweat in that account. The spouse who didn’t earn the money sees the groceries they couldn’t buy or the vacation they didn’t take because the money wasn’t in the paycheck. The Court sees that both partners made sacrifices in order for that money to accumulate. The marital portion will need to be divided, or some other asset exchanged so that both partners receive a portion of the equity in the retirement accounts.
PERSONAL PROPERTY – Although the couple may have spent many thousands of dollars furnishing a home, typically the value of regular household goods and furnishings isn’t very high. Most couples are able to tackle this obstacle without court intervention once they realize that by the time they pay two lawyers for 2 hours each to fight over a dining room table, they could buy a brand new set. In cases where the parties cannot or will not divide the property themselves, some courts have elaborate procedures where both parties must make complete lists of the assets and the value they think belongs on each item and they are then given the opportunity to “purchase” the item at the higher of the two values out of marital equity. Other couples result to coin tosses. Most judges do not have time to spend on “dividing the silverware.”
In summary, if you purchased it during your marriage with money that one or both of you earned, you both are entitled to an equal share. If one of you had it before marriage, received it as a gift during the marriage or inherited it during the marriage, then it may be separate property, which we will talk about in a future blog.
The information in this blog is presented only for educational and entertainment purposes. It is not intended as legal advice. No attorney-client relationship is intended or established if you choose to use this information on your own. I am not your lawyer unless we both sign an agreement stating that I am.
Thanks for reading!
Attorney Betty Burley
If you have ever been in need of legal services, you may have learned first-hand that it's difficult to get a straight answer about costs. There's a good reason for that.