The Law About Children and Your Divorce

Divorce can have a devastating effect, not only on the parties involved, but in particular the children. If a divorce is amicable then in most instances agreement will be reached between the parties as to who will look after them and what visiting rights are given for the other party. In these situations it is often possible for the children not to suffer, but when agreement can't be reached, then undoubtedly it can cause a lot of anguish for the children.

It is sad but true that in some cases the parties to the divorce can become unpleasantly selfish and this can often lead to either party becoming totally unreasonable about who gets custody of the children. A battle effectively commences and neither will give ground, so the case has to go to court for independent assessment and judgement. This is when it can get very distressing for children.

A court is faced with making a very difficult decision when deciding on the custody of minor children. However, the one overriding factor that a court must take into account is the decision has to always be in the best interest of the children. For example, a court must not make a custody decision based upon rewarding the party it thinks isn't guilty for the divorce or as a punishment to the one it thinks is mainly responsible for the divorce. It has to be objective and take into account which parent will offer the best opportunities and provide a safe and caring home environment.

Many factors have to be taken into account and it can take several hearings and much deliberating before a final decision is given. The court will need to learn about each parent and consider which one is best suited to raising the children. It may take into account age, their jobs, where they live and the court will try to ascertain the type of relationship each parent has with their children.

In most cases the court will also want to ensure that both parents will continue to care for their children, despite them being separated. Custody may be awarded to one parent, but the court will also decide on what rights the other parent has for seeing his or her children regularly.

A court can award custody to either parent, or if both parents are divorcing amicably, they can award custody to both. However, if the children are of school age then the court will determine which parent is best set up to ensure the children are properly educated.

A court will try not to get involved with visitation rights, if at all possible as it would prefer to allow the parents to work out the arrangements. However, if the parents are in dispute and are unable to come to a suitable arrangement then the court will impose visitation rights to the parent that has not been awarded custody.

As difficult as divorce can be, if you have children, try to put them in first place. They need the support of both parents and if it can be done amicably it will help your children and provide security for them.

Lawrence Reaves writes for Ephraim law, a divorce lawyer who has offices in Fairfax and Loudon counties. Click here for the Fairfax office and also check out this link for info on the Loudon office.

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False Report to Department of Children and Family Services - Be Aware!

A new Illinois law, effective January 1, 2012, makes it a crime for any person who knowingly transmits a false report to the Department of Children and Family Services (DCFS) a crime - and a serious one at that!

If one knowingly makes a false report to the DCFS, that person has committed the offense of disorderly conduct which is a Class 4 Felony, 325 ILCS 5/4 (2011).

I welcome this law. I have encountered too many times in my legal career a parent who abuses the system and makes false (and often repeated) reports to DCFS in an effort to destroy the relationship of a parent and child and to devastate the other parent. From now on, these false reporters are risking serious criminal penalties. A Class 4 felony is punishable by incarceration of not less than 1 year and not more than 3 years, and a fine of up to $25,000 can be assessed against an individual. While a person who is convicted of this crime may be able to get a suspended prison sentence and probation if they have a clean record, a repeat offender likely would not.

Any person who wants to use DCFS as a tool to falsely accuse another parent - or stepparent, or anyone else who stands in relationship with a child - is now playing a high risk game. Outrageous and false reports of abuse can now backfire on the accuser. If you were falsely accused and you believe that there is no way the report could have been made in good faith, you should contact the local authorities and seek a criminal investigation. Even if your accuser is not charged, your accuser will likely be dissuaded by the experience to ever try making a false report against you again.

Of course, mandated reporters such as doctors, nurses, and licensed professional counselors must make a report to DCFS if they have reasonable cause to believe a child known to him or her in their professional or official capacity may be an abused or neglected child. Bear this in mind if you find yourself in the role as a reporter, for this law is a two-way street. For example, if you have not personally witnessed the abuse but have heard a child's outcry, take the child to a mandated reporter. A hospital emergency room is a good place to consider taking a child when abuse is first reported. The facility will get a licensed professional to examine and speak to the child. Let the mandated reporter evaluate the child, and make a determination if there is reasonable cause to believe the child is abused or neglected. The professional will then notify DCFS. Don't take it upon yourself, in the heat of emotion, to assume the risk of making the report.

No one should hesitate to protect a child - but don't forget to protect yourself when doing so. No person should knowingly make a false report to DCFS - and if they do, they ought to be punished. With this new law, they can, and hopefully, will.

The Law Offices of Jeffery M. Leving, Ltd.

Attorney James M. Hagler of the Law Offices of Jeffery M. Leving, Ltd. ( http://dadsrights.com/ ), is widely-known as a tenacious litigator and to accompany his degrees from Boston University and John Marshall Law School, James Hagler also holds an FAA Airframe and Power Plant License from the University of Illinois Institute of Aviation and retired in 2005 after serving as a Sergeant First Class in a combat unit of the Illinois National Guard

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Estate Planning With Minor Children

If you leave property to your minor children at death, the minor children will not be able to manage it themselves. The minor children will generally either need a trustee or custodian to watch over the property until that minor reaches a certain age. Very often the person watching the property - a custodian or trustee - is also the guardian of the children, and commonly this is the other living spouse. If the other spouse is deceased, in jail, or ruled unfit for some reason, the guardian, and custodian or trustee, would have to be some other person. The following covers a few common options for managing this property while the children reach adulthood.

One option uses the Uniform Transfers to Minors Act - adopted by most states. The Uniform Transfers to Minors Act allows you to designate a custodian in your will, or living trust, that watches over the minor's property until the minor reaches a certain age specified by the state. Essentially, you have to identify in the will or trust: the minor; the property; the custodian; and state that the custodian must act under the Uniform Transfers to Minors Act for your state. Under the Uniform Transfers to Minors Act, the custodian has wide latitude to manage this property and can take reasonable fees for their efforts.

Two other common methods involve trusts. They are named Child Trusts and Family Pot Trusts. Similar to a Uniform Transfers to Minors Act transfer, they are also created in wills or living trust. Generally, a Child Trust allows more flexibility than the Uniform Transfers to Minors Act because you can specify certain duties for the guardian and you can specify an age other than the state's specified Uniform Transfers to Minors Act age - for example, you could pick 25 or 30 as an age when the child can gain control of the property. The Family Pot Trust is similar to a Child Trust but it combines the funds for multiple children. It also tends to work better when the children are close in age, otherwise you would want a Child Trust for each individual child.

There are some things to keep in mind when deciding between Uniform Transfers to Minors Act and a Child Trust or Family Pot Trust. The fees a Child Trust or Family Pot Trustee may charge can be higher than the Uniform Transfers to Minors Act custodian fees since there may be more customized instructions in the trust. The differences in tax rates between Uniform Transfers to Minors Act property and Child Trust or Family Pot Trust property varies. The age at which you want the property to become available to the child noteworthy because while trusts allow you to pick an age, the Uniform Transfers to Minors Act age is set by the state. The amount you are leaving can play a role as well. Of course, the most common reasons for choosing a trust over a will are that a trust remains private and seamless after death, while wills are public and may last months or years, and result in many thousands of dollars in probate costs. So, the benefits of the specification and privacy of these trusts come with a cost that you have to decide whether you are willing to pay.

Finally, although not the preferred method, you should at least name a property guardian in your will for the kids in case they receive any property that falls outside of the Uniform Transfers to Minors Act guardian or trust. There is a lot of court supervision with this method, requiring frequent filings by the guardian. The other methods mentioned prior to this are preferable to this option.

To find out which methods best fit your particular situation talk to an estate planning attorney in your state.

Windy City Esquire is an estate planning law firm in Chicago. Nick Wroblewski is the owner of Windy City Esquire, Ltd. They provide estate planning and business planning services. If you have questions, visit http://www.windycityesquire.com/.

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