Month: June 2014

PUTATIVE vs. LEGAL FATHER

          The courts have struggled for many years to define putative and legal father’s rights. In Georgia, a father is considered to be a legal father if the child was born between and husband and wife during the course of their marriage. A father can also be considered a legal father if the father marries the mother either after conception or even after birth if the father recognizes the child as his own. In 2005, Georgia established an additional avenue for having a father to establish his relationship with his child without having to marry the mother and without court involvement. A father can  now be considered a legal father if both he and the mother acknowledge that the father is the legal father by signing the Voluntary Acknowledgement of Paternity in front of a notary public within twelve months of the child’s birth and then files the acknowledgement with the state.

A father is considered a putative father if a person father’s a child with a mother out of wedlock and does not sign the Voluntary Acknowledgment of Paternity within first twelve months of the child’s life.  Under the eyes of the law, a putative father essentially has no legal rights to a child if they have not legitimated the child. This means that the father may be held financially responsible for the child, but have no right to inheritance from the child, have no right to visitation with the child, and essentially hit every possible road block to obtain information about the child’s medical and educational status.  If a father waits to long to legitimate, the court can consider the father’s involvement in the child’s life and the father runs a risk of never being able to establish visitation rights with the child.

King, Meier named among legal world’s ‘Elite’

John-Meier trish-kingPassion for practicing law is just one quality that boosted two Canton attorneys to the top. John Meier and Patricia King, who are partners in the Canton law firm of Thompson, Meier and King PC, recently were selected for inclusion in Legal Elite by Georgia Trend Magazine.

The attorneys were named as elite members of the legal field after a peer-review process where thousands of attorneys, who are members of the state bar, voted for the top attorneys in 10 different practices.

Meier was named Legal Elite in estate planning, and King was named Legal Elite in family law.

“I have to admit I was pleased to learn that my peers thought highly of me,” Meier said. “This also helped encourage me to continue pursuing my passion and broaden the services we provide so that we can be of greater assistance.”

King shared a similar sentiment.

“It was truly an honor,” she said of being named in Legal Elite. “However, I have the privilege of working with so many wonderful attorneys and staff that any accolades I may receive is really the result of a concerted effort.”

King, who has practiced family law since 1989, said going to law school was not a venture she had thought to pursue until graduating from college.

“I received my (bachelor of science) in psychology and criminal justice and was focusing my career on working with troubled teens,” she said.

It was an internship with a Connecticut juvenile probation department that opened King’s eyes to attending law school.

“I realized what a hard road many young people were faced with once they entered the system, whether it was because they committed a crime or because their parents could not care for them,” she said. “That’s when I decided to go to law school. After I graduated from law school, I entered private practice for a number of years but was offered the opportunity to become a child welfare attorney for the state of Florida.”

King’s career took off after that and with 15 years of experience in the courtroom, her passion for family law remains just as strong as it was when she started on her career path.

“Generally, family law deals with a number of family related matters, such as child welfare, adoption, delinquency, termination of parental rights as well as divorce, annulments, paternity and legitimization and issues tied to those matters,” she said.

“I knew very little about this practice until I became a child welfare attorney in Florida, and then it took off from there. I knew this was what I was supposed to be doing,” King said.

Meier said he enjoys practicing estate planning, which, he added, encompasses many different parts of the law.

“Certainly, it involves planning for the efficient transfer of assets in accordance with one’s wishes after death.  However, it also involves assisting clients with their long-term goals before death,” he said. “This can involve issues related to long-term health care, business succession, incompetence and planning for the care of a spouse or other loved ones, just to mention a few.”

Meier started his career as an attorney in 1985 and said he was inspired to pursue law by his friend’s father.

“However, I also grew up working on family farms. I went to college and furthered my love for farming and the family farm,” he said. “I was fortunate to have been hired by the University of Georgia’s Agricultural Economics Department (I ,think it is now the College of Environmental Sciences) after graduating. I worked for four years with UGA as an economic research associate. I spent those years working with hundreds of family farmers and agribusinesses across the state.”

When Meier was an economic research associate, he said it was a time of ultra-high inflation and oil embargos.

“I saw way too many families displaced from the only life they knew and lose assets that had been in their families for generations,” he said. “During this time my father died, and I was uncertain about the future of our farms. I decided that pursuing a career as an attorney assisting families and businesses build, retain and pass along assets was a way I could help others. Things have kind of morphed from there.”

Since embarking on a career that helps others plan for the future, Meier said one of his greatest accomplishments is “providing comfort to someone in a time of turmoil or anxiety.”

“This may not be a big accomplishment in terms of its effect on others but, for that person or family, it was one of the most important things in their life,” he said. “I believe my biggest blessing is my family.”

King said her greatest accomplishment is not tangible.

“I love what I do and the people I work with,” she said. “I have asked myself more than once, ‘how did I get so blessed, especially when it comes to the people in my office?’”

Similar to any career, there is always room for improvement.

pic-4-1aMeier said he encourages growth through professionalism in the courtroom.

“Fiduciary dispute matters are almost always complicated by very strong emotions,” he said. “In my opinion, attorneys certainly need to be zealous advocates for their clients, but they also should act in ways to try and maintain the focus on the client’s goals while endeavoring to limit the often adverse impact of decisions made based on emotion rather than reason or prudence.”

King agreed, adding that because family law matters can be highly emotional, she strives to treat everyone involved with respect.

“That’s not to say that I have achieved perfection in this area, although I can aim to do so one day,” she added.

 

The above news story was written by Jessica Lindley and published in the Cherokee Ledger News. The story can be found online here.

Guardianship Options for Minors in Georgia: Part Two

By: William E. Carlan

This is the second of a two-part post outlining the different guardianship options for minors in Georgia.

Part-one of this post covered natural guardians, testamentary guardians, and standby guardians. This post will cover the final two types of guardianship: Temporary and Permanent. Each of these guardianship avenues requires court involvement and oversight.

TEMPORARY GUARDIANS

A temporary guardianship is only appropriate when one or more parent is alive. The law recognizes that inherent to being a parent comes the authority to give that parental authority to another person to ensure the best interests of a child.

There are a litany of reasons that a parent may wish to temporarily relinquish parental authority. For example, the family may be moving to another city and the parents wish for the child to remain at their current school through graduation. In fact, a temporary guardianship case are often referred to as a “school guardianship.” Other reasons may be that a parent is going to check himself into a rehabilitation facility to address a substance abuse issue, or a parent may be facing incarceration for a period of time due to poor decisions, or a parent may be called to active military service. The goal of the temporary guardianship is to provide for a child’s needs while the parent is absent.

If a temporary guardianship is granted, the parental rights of the parent are not terminated. The parent remains the legal parent of the child, but custody of the child will be transferred to the new temporary guardian. When the temporary guardianship terminates, the parent returns to serving as the child’s custodian.

The creation of a temporary guardianship begins with the filing of a petition with the probate court in the county where the petitioner resides. The petitioner is required to list the child’s parents and whether the parents have consented to the creation of the temporary guardianship. If both parents have not consented to the creation of the temporary guardianship, the petition must state why the temporary guardianship is needed.

If a parent wishes to object to the temporary guardianship, the parent must state whether the objection is to the creation of the guardianship or merely to the selection of whom shall serve as the temporary guardian. If the natural guardian objects to the creation of the guardianship, the court must dismiss the petition and cannot grant the guardianship. All other objections will cause the court to hold a hearing. The probate court is authorized to refer the case to the juvenile court for an investigation and recommendation as to the best interests of the child.

If the temporary guardianship is created, either by consent or after a hearing, the temporary guardian must decide whether she will assume the obligation to support the child and not seek child support from the parents. If the temporary guardian accepts this obligation, the temporary guardianship will be treated as a permanent guardianship for the purpose of obtaining medical insurance coverage. Insurance companies may not offer insurance for minors subject to a temporary guardianship, but they will offer coverage for minors under a permanent guardianship.

There are six ways in which the temporary guardianship will terminate:

(1) The minor reaches majority (age 18);

(2) The minor is emancipated;

(3) The minor is adopted;

(4) The minor or the temporary guardian dies;

(5) The court creates a testamentary or permanent guardianship concerning the minor; or

(6) The court enters an order terminating the guardianship.

The parents may petition the court to terminate the temporary guardianship at any time. When they file their petition, they must give notice to the temporary guardian of their intention. The temporary guardian will have ten days to object to the parents’ petition. If the temporary guardian objects within ten days, the court will hold a hearing to determine whether or not terminating the temporary guardianship will be in the best interests of the child. If there is no objection, the court may terminated the guardianship without a hearing.

PERMANENT GUARDIANS

A permanent guardianship is only appropriate when both parents are deceased. Also, the child cannot have testamentary guardian or other permanent guardian. If a testamentary guardian was named by the parent, and that person is willing to serve, that selection will be honored by the court.

The permanent guardianship begins with a petition being filed in the probate court where the child or the proposed permanent guardian resides. A copy of the petition must be given to the child’s relatives informing them of the petitioner’s desire to establish a permanent guardianship for the child. These relatives and other interested parties will be provided an opportunity to object to the creation of the permanent guardianship. Whether there is an objection or not, the court must hold a hearing to determine whether a need exists for the permanent guardianship and, if so, who should serve as the permanent guardian. If the best interests of the child will be served by appointing a permanent guardian, the court will create a permanent guardianship.

A question often arises regarding the rights of a putative biological father of the child who is not the legal father of the child. If the child was born out-of-wedlock, the putative biological father must petition the Superior Court to become a “legitimate” or legal father. Just having the father’s name on the birth certificate is not sufficient make him a legal father. The probate court will give the putative biological father the opportunity to legitimate the child. If the father is successful the permanent guardianship will be moot because the child will have a natural guardian. If the father’s legitimation petition fails or is dismissed, the father will lose any right to object to the creation of the permanent guardianship.

When deciding who should serve as the permanent guardian. The probate court is guided by statute to consider the following list of preferred individuals. The preference list is non-binding on the probate court, and the court may deviate from the list at its discretion. In decreasing priority, the list is as follows:

(1) If the child is at least fourteen years old, that child’s selection of an adult guardian;

(2) The nearest adult relative of the child as determined by statute;

(3) Other adult relatives of the child;

(4) Other adults related to the child by marriage

(5) An adult who was designated in a notarized and witnessed writing by the child’s natural guardian; or

(6) An adult who has provided care or support for the child or with whom the child has lived.

Once the permanent guardianship has been created, the permanent guardian will be responsible for the child until the child reaches age 18. The court is authorized, but not required, to order that the permanent guardian post a bond to protect the interests of the child.

Whether you are a person seeking to serve as a guardian for a child in need or a parent or family member of a child who is subject to a guardianship petition, it is essential that you contact an experienced, trained attorney to assist you. This overview has examined the broad-picture regarding guardianship in Georgia. A qualified lawyer will be able to assist you in the fine-points of this area of the law.

Guardianship Options for Minors in Georgia: Part One

By: William E. Carlan

This is the first of a two-part post outlining the different guardianship options for minors in Georgia.

Our children are our future, but until they reach majority each one is required to have a legal guardian. Many times, that guardian is the child’s parent; however, on occasion, the legal guardian of a child is a relative, a family friend, or even a stranger to the child. Depending on the circumstances surrounding the child and the family, there are different avenues that are available to ensure that each and every child in the State of Georgia has a guardian to care for him or her.

There are five different types of guardianship for minors available in Georgia:

(1) Natural Guardians;

(2) Testamentary Guardians;

(3) Stand-by Guardians;

(4) Temporary Guardians; and

(5) Permanent Guardians.

NATURAL GUARDIANS

Taking the most common guardianship scenario first, the natural guardian is what most people consider when they think of a child’s parents. In short, the natural guardian is the child’s biological parent.

But this is the law: we don’t allow things to be easy. Georgia makes a distinction between the terms “parent” and “natural guardian.” Not all parents are natural guardians, and not all natural guardians are biological parents. For example, if two parents divorce and one parent is given “sole-custody” of the child, that parent is the child’s only natural guardian. The other parent remains a parent, with intact parental rights, but that parent is not considered a natural guardian. (As an aside: parents who share “joint legal custody” of the child after a divorce both remain natural guardians.) Also, a child may have a natural guardian that is not a biological parent if the natural guardian has adopted the child.

This distinction between a person who is a natural guardian and a person who merely holds parental rights will be important when considering the guardianship scenarios in the second part of this post.

TESTAMENTARY GUARDIANS

Tragedies happen every day. Sadly, when those tragedies happen, they sometimes leave children without natural guardians. Georgia law allows for parents and natural guardians to make provisions for their minor children in the event of a tragedy by selecting a guardian for their children in their Last Will and Testament. Since the selection is made in this special legal document, the guardianship is called a testamentary guardianship.

There are some special requirements for a testamentary guardianship to be effective. First, the selection has to be made by a child’s parent. As much as you might like to put in your will that you would like the neighbor’s child Bobo sent to the circus upon your neighbor’s death, your request will be denied. Second, you must have a valid will under Georgia law. If you do not have a will, or if your will does not reflect your wishes regarding a testamentary guardian, contact a trained lawyer to assist you. Third, your selection will only be used if you are the child’s last parent to die. There is no need to have a testamentary guardian for the child if a natural guardian or parent is still alive.

Too frequently, there are times when a natural guardian passes away and their family does not want the child to be raised by the other parent. Perhaps the other parent is a deadbeat or estranged or just not a nice person. If that is the case, the family cannot rely on the natural guardian’s testamentary guardianship selection to circumvent the remaining parent. The family members will have to pursue another guardianship avenue; most likely temporary guardianship.

Finally, you will need to be sure that the person you have chosen as your testamentary guardian is willing and able to serve. If they do not know that you selected them in your will, they may not know to look for your will. When the Last Will and Testament is offered to the Probate Court, the testamentary guardian will be given the necessary credentials to care for the minor children left behind.

STAND-BY GUARDIANS

The stand-by guardianship statutes are often overlooked and under-used in Georgia. A stand-by guardian is a person who is selected by a parent to act as a child’s guardian for a limited period of time while the parent’s mental or physical condition has left the parent unable to care for the child. The trick, of course, is knowing that you are going to need a stand-by guardian.

The person selecting the stand-by guardian must be a parent or a permanent guardian.  If a parent is selecting, the other parent of the child must either be: dead, have had his parental rights terminated, be unable to be located after a diligent search, or have consented to the selection of the stand-by guardian.

If the stand-by guardian becomes necessary due to the parent’s mental or physical condition, this moment is called the “health determination,” the stand-by guardian must file a notice with the probate court and spring into action to provide for the child.

There are three ways to terminate a stand-by guardianship: (1) The stand-by guardianship automatically expires 120 days after the “health determination”; (2) The parent who selected the stand-by guardian can revoke the selection. Since notice was given to the court when the stand-by guardianship went into effect, it becomes necessary for the parent to file a revocation with the court. The parent choosing this second option is also required to mail a copy of the revocation to the stand-by guardian; and (3) The stand-by guardianship will terminated upon the death of the parent or when the court creates a temporary guardianship regarding the minor.

Because setting up a stand-by guardianship requires special language to be effective, it is highly suggested that you contact a skilled attorney to assist you in drafting your stand-by guardianship selection.

These first three types of guardianship require very little court involvement. The final two guardianship options, the permanent guardianship and the temporary guardianship, rely heavily on the court and will be covered in the second part of this two-part series.